guidance on the cma's investigation procedures in ... · the cma applies national competition...
TRANSCRIPT
1
Competition Act 1998:
Guidance on the CMA's
investigation
procedures in
Competition Act 1998
cases
18 January 2019
CMA8
CMA Competition & Markets Authority
© Crown copyright 2019
You may reuse this information (not including logos) free of charge in any format or medium, under the terms of the Open Government Licence.
To view this licence, visit www.nationalarchives.gov.uk/doc/open-government-licence/ or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: [email protected].
3
Page
1 Preface ................................................................................................................ 4
2 The legal framework ............................................................................................ 8
3 The sources of the CMA’s investigations ........................................................... 10
4 What the CMA does when it receives a complaint ............................................. 15
5 Opening a formal investigation........................................................................... 17
6 The CMA’s formal powers of investigation ......................................................... 19
7 Limits on the CMA’s powers of investigation ...................................................... 30
8 Taking urgent action to prevent significant damage or to protect the public
interest ............................................................................................................... 33
9 Analysis and review ........................................................................................... 39
10 Investigation outcomes ...................................................................................... 43
11 Issuing the CMA’s provisional findings – the Statement of Objections ............... 50
12 Right to reply ...................................................................................................... 57
13 The final decision ............................................................................................... 65
14 Settlement .......................................................................................................... 68
15 Complaints about the CMA’s investigation handling, right of appeal and
reviewing the CMA’s processes ......................................................................... 78
16 Application and enforcement of Articles 101 and 102 ........................................ 81
ANNEXE(S) .............................................................................................................. 85
A. TEMPLATE DECLARATION OF TRUTH .......................................................... 86
Table of contents
4
1 Preface
1.1 The Competition and Markets Authority (CMA) has set out, in this guidance
document, general information for the business and legal communities and
other interested parties on the processes that the CMA uses when using its
powers under the Competition Act 1998 (CA98), as amended by the
Enterprise and Regulatory Reform Act 2013 (ERRA13) to investigate
suspected infringements of competition law.
1.2 This guidance updates and supersedes the previous version issued in March
2014.
1.3 This guidance should be read alongside the CMA publications Administrative
Penalties: Statement of policy on the CMA’s approach (CMA4),
Transparency and Disclosure: Statement of the CMA’s policy and approach
(CMA6) and Prioritisation principles for the CMA (CMA16), which outline the
basis on which the CMA decides which cases to investigate.
1.4 This guidance sets out the CMA’s procedures and explains how the CMA
generally conducts investigations into suspected competition law
infringements. This represents the CMA’s practice as at the date of
publication of this document. It may be revised from time to time to reflect
changes in best practice or the law and the CMA’s developing experience in
assessing and investigating cases.
1.5 The CMA will apply this guidance flexibly. This means that the CMA will have
regard to the guidance when dealing with suspected competition law
infringements but that, when the facts of an individual case reasonably justify
it, the CMA may adopt a different approach.
1.6 This guidance is concerned exclusively with the CMA’s investigations under
the CA98. It does not cover CMA investigations into individuals suspected of
having committed the criminal cartel offence nor does it cover competition
disqualification order proceedings.1
1.7 This guidance does not cover the procedures used by sectoral regulators2 in
their competition law investigations. Further guidance on the enforcement of
1 See Director disqualification orders in competition cases (OFT510)..
2 The Office of Communications, the Gas and Electricity Markets Authority, the Northern Ireland Authority for
Utility Regulation, the Water Services Regulation Authority, the Office of Rail and Road, NHS Improvement,
the Civil Aviation Authority, the Financial Conduct Authority and the Payment Systems Regulator. This list is
correct as at 1 June 2018. The list may change from time to time if further sectoral regulators are given
concurrent powers.
5
competition law by the sectoral regulators is available in the CMA guideline
Regulated Industries: Guidance on concurrent application of competition law
to regulated industries (CMA10) or from the relevant organisation's website.
1.8 This document incorporates the commitments made in the CMA’s published
guideline Transparency and Disclosure: Statement of the CMA’s policy and
approach (CMA6) insofar as they apply to investigations under the CA98.
1.9 This guidance document also incorporates the CMA’s guidance as to the
circumstance in which it may be appropriate to accept commitments under
section 31A of the CA98, see paragraphs 10.17 to 10.20 which constitute
this guidance.
Statutory background
1.10 Section 31D(1) of the CA98 requires the CMA to prepare and publish
guidance as to the circumstances in which it may be appropriate to accept
commitments. Section 31D(2) of the CA98 provides that the CMA may alter
this guidance at any time. Section 31D(3) of the CA98 provides that, if the
guidance is altered, the CMA must publish the guidance as altered. Under
section 31D(4) of the CA98 the Secretary of State must approve any
guidance on commitments before it can be published. When preparing or
altering guidance on commitments, sections 31D(6) and (7) of the CA98
require the CMA to consult such persons as it considers appropriate,
including the Regulators. These particular provisions apply to the CMA alone
and not to the Regulators.
1.11 Paragraphs 10.17 to 10.20 were approved by the Secretary of State as
required under section 31D(4) of the CA98 on 14 January 2019. It was
published and came into effect on 18 January 2019. Before finalising this
revised guidance, the CMA conducted a consultation in accordance with
section 31D(6) and (7) of the CA98.
1.12 By virtue of section 31D(8) of the CA98, the CMA must have regard to the
guidance for the time being in force when exercising its discretion to accept
commitments under section 31A. A similar requirement applies to the
Regulators by virtue of legislation that conferred on them concurrent powers
under the CA98.
1.13 This guidance, including the statutory commitments guidance, will take effect
from 18 January 2019. The changes will apply to all ongoing and future
cases from 18 January 2019.
6
1.14 The decision-making procedures set out in this guidance will apply to
ongoing and future civil cases under the CA98. The CMA has published
guidance on the principles to be applied in determining, in any case, whether
criminal proceedings should be brought under section 188 of the EA02 (as
amended by the ERRA13). More information is available in the CMA
guideline Cartel Offence: Prosecution Guidance (CMA9).
1.15 This document is not a definitive statement of, or a substitute for, the law
itself and the legal tests which the CMA applies in assessing breaches of
competition law are not addressed in this guidance. A range of publications
on how the CMA carries out this substantive assessment is available on the
CMA’s webpages. The CMA recommends that any person who considers
that they or their business may be affected by an investigation into
suspected anti-competitive practices should seek independent legal advice.
1.16 This guidance sets out the procedures the CMA follows within the legal
framework outlined in Chapter 2. It addresses each stage of a typical
investigation in turn. The key stages of an investigation into a suspected
infringement and a summary of the CMA’s action at these stages are set out
at Figure 1.1.
7
Figure 1.1 – Key stages in an investigation
Initial consideration of issues and
informal evidence gathering
KEY STAGES
Source of CMA investigations
Du
rati
on
of
form
al
inv
es
tig
ati
on
va
rie
s d
ep
en
din
g o
n t
he
ca
se
Open a formal investigation?
Formal information gathering powers
Is there sufficient evidence of an infringement?
Statement of Objections and access to
CMA file
Parties’ right to reply
Infringement
decision and
action (financial
penalties, directions)
WHAT DOES THE CMA
DO?
In light of parties’ representations, is there
sufficient evidence of an infringement?
No grounds for
action decision
Parties’ right of appeal
to the Competition
Appeal Tribunal
Apply the Prioritisation
Principles
Consider whether the
legal test (Section 25 of
the Act) has been
satisfied
Publish case opening notice
Issue written information
requests
Conduct interviews
Visit and search premises
to obtain information
Analysis of gathered
evidence
Set out CMA provisional
findings, supporting
evidence and proposed
action
Receive/consider parties’
representations on SO (written
and oral)
Issue draft penalty statement (if
applicable) and receive/consider
parties’ representations (written
and oral)
Issue decision to parties
Publish non-confidential
version of decision
8
2 The legal framework
2.1 The legal framework that applies to the investigation and enforcement of
suspected civil breaches of competition law is described below.
2.2 The Treaty on the Functioning of the European Union (TFEU) and the CA98
both prohibit, in certain circumstances, agreements and conduct which
prevent, restrict or distort competition, and conduct which constitutes an
abuse of a dominant position.
2.3 More information on the laws on anti-competitive behaviour is available in
the quick guide Competing Fairly (OFT447) and in the more detailed
guidance on Agreements and Concerted Practices (OFT401) and Abuse of a
dominant position (OFT402).
2.4 In the UK, competition law is applied and enforced principally by the CMA.3
The CA98 gives the CMA powers to apply, investigate and enforce the
Chapter I and Chapter II prohibitions in the CA98 and Articles 101 and 102
of the TFEU.4
2.5 Under EU legislation,5 as a 'designated national competition authority', when
the CMA applies national competition law either to agreements which may
affect trade between Member States or to abuse prohibited by Article 102,
the CMA is also required to apply Articles 101 and 102 of the TFEU.6
2.6 Further information on the framework for applying Articles 101 and 102 of
the TFEU and the interaction with the Chapter I and Chapter II Prohibitions
in the CA98 is available in the guide Modernisation (OFT442).
2.7 There are procedural rules that apply when the CMA takes investigative or
enforcement action.7 In addition, the CMA is required to carry out its
3 However, certain sectoral regulators (see paragraph 1.7 above) have concurrent powers with the CMA to
apply and enforce the Chapter I and Chapter II prohibitions in the CA98 and Articles 101 and 102 of the TFEU
within their respective regulated sectors. These sectoral regulators also have concurrent competition law
powers in respect of market studies and investigations under Part 4 of the EA02.
4 See Chapter III (Investigation and Enforcement) of the CA98.
5 Article 3 of Council Regulation (EC) No 1/2003 (OJ L1, 4.1.2003, p.1), as amended.
6 The relevant sectoral regulators are also designated national competition authorities within their respective
sectors.
7 The Competition Act 1998 (Competition and Markets Authority’s Rules) Order 2014 SI 2014/458 (the CA98
Rules).
9
investigations and make decisions in a procedurally fair manner according to
the standards of administrative law.8
2.8 In exercising its functions, as a public body, the CMA must also ensure that it
acts in a manner that is compatible with the Human Rights Act 1998.
8 See in particular Pernod Ricard SA and Campbell Distillers Limited v Office of Fair Trading [2004] CAT 10.
10
3 The sources of the CMA’s investigations
3.1 There are a variety of ways in which information can come to the CMA's
attention, leading the CMA to investigate whether competition law may have
been breached.
3.2 The CMA’s own research and market intelligence may prompt the CMA to
make initial enquiries into suspected anti-competitive conduct. Alternatively,
evidence gathered through other CMA workstreams, such as the CMA’s
merger or markets functions, or use of the CMA’s powers under the
Regulation of Investigatory Powers Act 2000, or information received via the
European Competition Network or the European Commission (the
Commission) may reveal potentially anti-competitive behaviour. In these
circumstances, the CMA gathers publicly available information and may write
to businesses or individuals seeking further information that the CMA
considers could be relevant.
3.3 The CMA also relies on information from external sources to bring to its
attention potentially anti-competitive conduct. This could be from individuals
with so called 'inside' information about a cartel9 or from a complainant.
Cartels and leniency
3.4 A business which is or has been involved in a cartel10 may wish to take
advantage of the benefits of the CMA’s leniency programme prompting them
to approach the CMA with information about its operation.
3.5 By confessing to the CMA, a business could gain total immunity from, or a
significant reduction in, any financial penalties the CMA can impose if it
decides that the arrangement breaches the Chapter I prohibition and/or
Article 101 of the TFEU.11
3.6 It is also a criminal offence for an individual to agree with one or more other
persons to make or implement, or cause to be made or implemented, any
9 The CMA operates a financial reward programme in exchange for information about the operation of a cartel,
see Cartels: policy for witnessing and reports. 10 A cartel is an agreement between businesses not to compete with each other. The agreement can often be
verbal. Typically, illegal cartels involve cartel members agreeing on price fixing, bid rigging, output quotas or
restrictions, and/or market sharing arrangements. In some cartels, more than one of these elements may be
present. For the purposes of the CMA’s leniency programme, price-fixing includes resale price maintenance.
11 More information on how the CMA sets penalties is available: CMA’s guidance as to the appropriate amount
of a penalty (CMA73).
11
cartel arrangements in the United Kingdom.12 Cooperating current and
former employees and directors of companies which obtain immunity from
financial penalties will normally receive immunity from prosecution. Also, an
individual who comes forward with information about a cartel may receive
immunity from criminal prosecution.13
3.7 In addition, the CMA will not apply for a competition disqualification order
against any current director of a company whose company has benefited
from leniency.14 However, the CMA may apply for an order against a director
who has been removed or has otherwise ceased to act as a director of a
company owing to his role in the breach of competition law and/or for
opposing the application for leniency, or against a director who fails to co-
operate with the leniency process.
3.8 The CMA encourages business representatives who suspect that their
business has been involved in cartel activity to blow the whistle on the cartel.
3.9 For more information on what constitutes a cartel, see the CMA’s quick
guide Cartels and the Competition Act (OFT435) and the guideline
Agreements and Concerted Practices (OFT401).
How to apply for leniency
3.10 The CMA handles leniency applications in strict confidence. Applications for
lenient treatment under the CMA's leniency programme should be made to
the Senior Director or Director of Cartels in the first instance. More detailed
information on the CMA’s leniency programme is available in Applications for
leniency and no-action in cartel cases (OFT1495).
Complaints about possible breaches of competition law
3.11 Another way in which the CMA receives information from external sources is
where an individual or a business complains to the CMA about the behaviour
of another business. Complaints can be a useful and important source of
information relating to potentially anti-competitive behaviour.
12 Section 188 of the EA02. Section 188A of the EA02 (as amended by the ERRA13) sets out circumstances in
which the cartel offence has not been committed. Section 188B of the EA02 (as amended by the ERRA13)
provides statutory defences to the cartel offence. See further CMA guideline Cartel Offence: Prosecution
Guidance (CMA9).
13 See further the CMA’s guideline Applications for leniency and no action in cartel cases (OFT1495).
14 In respect of the activities to which the grant of leniency relates. For further detail, see CMA guidance Director
disqualification in competition cases (OFT510).
12
How to make a competition complaint
3.12 If an individual or a business suspects that another business is infringing
competition law, they should contact the CMA.
3.13 Complaints about suspected cartels should be made by calling the CMA’s
Cartel Hotline on 0800 085 1664 or 020 3738 6888 or by emailing the CMA
at [email protected]. These complaints are handled in
confidence by the CMA. Guidance on reporting a suspected cartel to the
CMA is available in the quick guide Cartels and the Competition Act
(OFT435).
3.14 For all other competition related complaints, the CMA should be informed via
its webpages in the first instance,15 which will set out the format and method
for making the CMA aware of competition concerns. It is also possible to
make a complaint to the CMA anonymously using a non-name-based email
account, a private masked phone number, by post or via a representative
(such as a trade association). The CMA webpages provide information on
how to do so.
3.15 Complaints made via the CMA’s webpages which appear to relate to a
suspected cartel will be redirected to the Cartel Hotline.16
Pre-complaint discussions
3.16 Where a complainant is considering investing significant resource into a
complaint, it can approach the CMA with an outline in the first instance and
ask for the possibility of having a pre-complaint discussion. This may be
helpful to businesses in deciding whether to commit the necessary time and
effort in preparing a reasoned complaint.
3.17 In such cases, the CMA may give an initial view as to whether the CMA
would be likely to investigate the matter further if an in-depth complaint were
to be made. This view would be based both on the likelihood of the
complaint raising competition concerns and on the assessment of the
complaint against the CMA’s Prioritisation Principles to see if it falls within
the CMA’s casework priorities at the time (see Chapter 4 for more
information on how the CMA prioritises cases). However, any view given at
this stage will not commit the CMA to opening an investigation.
15 Complaints can also be made by calling the CMA on 020 3738 6000. 16 The CMA offers financial rewards of up to £100,000 (in exceptional circumstances) for information about
cartel activity. See the CMA’s Informant reward policy for further details.
13
3.18 To be able to engage in pre-complaint discussions, the CMA would expect to
receive a basic level of information submitted via its webpages from the
complainant covering the key aspects of their concerns. This should include:
• the identity of the complainant and the party/ies to the suspected
infringement, and their relationship to one another (for example, whether
they are competitors, customers or suppliers), and
• the reasons for making the complaint, including a brief description of:
the product(s)/service(s) concerned;
the agreement or conduct the complainant believes to be anti-
competitive;
the type of business operated by the complainant and the party/ies to
the suspected infringement (for example, manufacturer, wholesaler,
retailer) and an indication of their geographic scale (for example,
local, national, or international); and
if known, the size of the market and of the parties involved (for
example, market shares).
3.19 Whether the CMA engages in pre-complaint discussions will depend on the
availability of CMA resources and whether the issue(s) outlined in the basic
information suggest to the CMA that the case is one that would merit a
prioritisation assessment by the CMA.
Confidentiality of complaints
3.20 The CMA understands that individuals and businesses may want to ensure
that details of their complaints are not made public. If a complainant has
specific concerns about disclosure of its identity or its commercially sensitive
information, it should let the CMA know at the same time as submitting its
complaint. The CMA is prohibited17 from disclosing certain confidential
information and while the CMA is considering whether to pursue a complaint
it aims to keep the identity of the complainant confidential. Furthermore, as
noted at paragraph 3.14 above, complainants who have particular concerns
in this regard can make a complaint anonymously.
17 Part 9 of the EA02. However, Part 9 does permit the CMA to disclose confidential information in certain
specified circumstances.
14
3.21 If the CMA decides to open a formal investigation, it may, at some point
during the course of that investigation, need to reveal a complainant’s
identity and/or the information18 supplied by it, so as to allow the business
under investigation to respond properly to the information provided. The
CMA will aim not to – and generally will in practice not need to – reveal a
complainant’s identity without their consent until a Statement of Objections is
issued. Before disclosing a complainant's identity or any of their information,
the CMA will contact the complainant (or its representative, as appropriate)
to give it an opportunity to comment. Further information is available on the
CMA’s webpages.
Involvement of complainants where the CMA prioritises an investigation
3.22 The CMA may provide a complainant with information during an
investigation. For example, a complainant may be provided with a non-
confidential version of a Statement of Objections or an opportunity to
comment on a draft case closure letter, where certain circumstances are
met.19
18 Complaints made anonymously should therefore avoid including information that could allow the
complainant’s identity to be deduced. 19 See, for example, paragraphs 10.3-10.6 and 12.6.-12.10 below.
15
4 What the CMA does when it receives a complaint
4.1 The CMA welcomes submissions from businesses and consumers regarding
competition concerns. Due to resource constraints the CMA may not be able
to respond to all complaints it receives. The CMA may engage in informal
dialogue with the complainant if the CMA needs to clarify any information
provided to it at this stage or the CMA requires additional information.
Although the CMA considers all complaints it receives, the CMA cannot
formally investigate all suspected infringements of competition law. The CMA
decides which cases to investigate on the basis of its Prioritisation principles
These take into account the likely impact of the investigation in the form of
direct or indirect benefits to consumers, the strategic significance of the
case, the risks involved in taking on the case, and the resources required to
carry out the investigation.
4.2 However, the CMA’s ability to follow up on a complaint and to determine
whether to open a formal investigation depends to a great extent on the
timely cooperation of the complainant and the amount and quality of
information they provide to the CMA. The CMA will be better able to
consider a complaint that includes the information set out in paragraph 3.18
above. As noted above at paragraph 3.14, the CMA should be informed of
complaints via its webpages in the first instance
4.3 If the CMA decides not to prioritise a complaint at this stage, in appropriate
cases it may send an advisory letter or a warning letter to the company or
companies whose conduct is the subject of the complaint.20 This would
inform them that the CMA has been made aware of a possible breach of
competition law by them and that, although the CMA is currently not minded
to pursue an investigation, it may do so in future if the CMA receives further
evidence of a suspected infringement or the CMA’s prioritisation assessment
changes.
4.4 Where the CMA prioritises a complaint, the case will be allocated to the
appropriate area of the Enforcement Directorate for further investigation.21
20 See the CMA’s Essential information for businesses: warning and advisory letters. 21 In some cases, members of the Enforcement Directorate may be involved in considering the complaint.
16
Overview of process
Initial assessment phase
4.5 Once the CMA has decided to take forward a case within the Enforcement
Directorate, the CMA may gather more information from the complainant, the
company/ies under investigation, and/or third parties. This may involve
sending an informal request for information, a request for clarification of
information already provided in the complaint, or an invitation to meet with
the CMA. Information will be requested at this stage on an informal basis, i.e.
the CMA will rely on voluntary cooperation rather than using its formal
powers to gather information.
4.6 However, it is unlikely that the CMA would gather information informally,
where it considers that contacting the businesses under investigation
informally at this stage may prejudice the investigation, for example in the
case of suspected cartels.
17
5 Opening a formal investigation
5.1 If a complaint is likely to progress to a formal investigation, the case is
allocated:
• a designated case team, responsible for day-to-day running of the case,
and
• a Senior Responsible Officer (SRO), who is responsible for authorising
the opening of a formal investigation and taking certain other decisions,
including, where the SRO considers there is sufficient evidence,
authorising the issue of a Statement of Objections.22
5.2 After the decision has been taken to open a formal investigation, the CMA
will send the businesses under investigation a case initiation letter setting out
brief details of the conduct that the CMA is looking into, the relevant
legislation, the case-specific timetable, and key contact details for the case
team such as the Assistant Project Director, Project Director and SRO.23
5.3 The receipt of a case initiation letter will often coincide with the CMA’s use of
its formal powers, for example, with the business also receiving a formal
notice or information request. See Chapter 6 for more information on the
CMA’s formal powers of investigation.
5.4 In some cases, it will not be appropriate to issue a case initiation letter at the
start of a case, as to do so may prejudice the investigation, such as prior to
unannounced inspections or witness interviews. In these cases, the CMA will
send out the letter as soon as possible.
5.5 Once a formal investigation is opened and the parties have been informed of
this, the CMA will generally publish a notice of investigation on its
webpages24 as soon as practicable after the formal investigation has been
opened and updated thereafter, as appropriate. However, the CMA will
generally not publish or update any notice where doing so may prejudice the
investigation – or any criminal investigation or any company disqualification
order investigation – connected with that case.25
22 The categories of decision for which the SRO is responsible are listed in more detail at paragraph 9.6 below.
23 See Transparency and Disclosure Statement of the CMA’s policy and approach (CMA6).
24 Section 25A of the CA98 permits the CMA to publish a notice of investigation. 25 Further information on the CMA’s approach to treatment and disclosure of information is available in the
guideline Transparency and Disclosure: Statement of the CMA’s policy and approach (CMA6). For information
regarding the CDO investigations, see the CDO guidance page.
18
5.6 Section 25A(1) of the CA98 sets out the type of information that a notice of
investigation may contain. The notice will generally include basic details of
the case, such as whether the case is being investigated under the Chapter I
and/or II prohibitions, a brief summary of the suspected infringement, and
the industry sector involved. The CMA will also outline the administrative
timetable for the case.26 If the timetable changes during the investigation, the
timetable will be updated in the notice of investigation including, where
possible, reasons for the changes that have been made.
5.7 The CMA would not generally expect to publish the names of the parties
under investigation in the notice at this stage other than in exceptional
circumstances, such as where:
• leaving such parties unidentified could be expected to result in
significant consumer detriment and/or significant harm to other
businesses (including those in the same sector)
• the party’s involvement in a CMA investigation is already in the public
domain or is the subject of significant public speculation
• the subject matter of the investigation is of widespread public concern
• a party has requested that it be named by the CMA
• doing so is necessary to ensure that the case is progressed
effectively, or
• such enforcement action is associated with similar action being
undertaken by one or more other competition enforcement agencies,
whether in the United Kingdom or elsewhere.
The CMA will usually include parties’ names in the notice of investigation at
a later stage of an investigation, and if a Statement of Objections is issued.
5.8 In some cases, such as cartel investigations, it will not be possible to include
many details of the investigation at the stage of publishing the notice of
investigation, as to do so might prejudice the CMA’s ongoing investigation.
26 Initially, the timetable will cover the investigative stages up to the CMA’s decision on whether to issue a
Statement of Objections. If the CMA issues a Statement of Objections, the timetable will be updated with
indicative timing of the steps to the end of the investigation.
19
6 The CMA’s formal powers of investigation
Information gathering powers
6.1 The CMA has a range of powers to obtain information to help it establish
whether an infringement has been committed.27 The CMA can require the
production of specified documents or information, ask individuals oral
questions and/or carry out interviews with individuals, enter premises without
a warrant, and enter and search premises with a warrant. The entering of
premises can be with or without notice. 28
Written information requests
6.2 The CMA will send out formal information requests (also referred to as
section 26 notices)29 in writing to obtain information that it considers relates
to any matter relevant to this investigation from a range of sources such as
the business/es under investigation, their competitors and customers,
complainants, and suppliers.
6.3 The information request will tell the recipient what the investigation is about,
specify or describe the documents and/or information that the CMA requires,
and set out the offences and/or sanctions that may apply if the recipient does
not comply. The request may also give details of where and when the
documents and/or information must be produced.
6.4 Examples of the types of documents30 and information the CMA may ask for
include internal business reports, copies of emails and other internal data.
Under this power, the CMA can ask for information that is not already written
down, for example market share estimates based on knowledge or
experience. The CMA can also require past or present employees of the
business providing the document to explain any document that is produced.
If a document cannot be produced, the CMA can require the recipient to
state, to the best of their knowledge, where the document can be found.
27 Information gathered under the CMA’s powers can also be used in any director disqualification proceedings
the CMA brings. For further information, see Directors disqualification orders in competition cases (OFT510). 28 The CMA also has powers to gather information to assist other authorities in relation to their investigations
into suspected competition infringements in other parts of the European Union. For example, the CMA may
assist the Commission in obtaining information in relation to its investigations into suspected infringements of
Articles 101 and 102 of the TFEU. For further information see Chapter 16 below. 29 Section 26 of the CA98 gives the CMA the power to require the production of information and documents.
when conducting a formal investigation.
30 The term ‘document’ includes ‘information recorded in any form’, section 59 of CA98.
20
6.5 The CMA may send out more than one request to the same person or
company during the investigation. For example, the CMA may ask for
additional information after considering material submitted in response to an
earlier request.
6.6 The CMA will ask for documents or information which, in its opinion, are
relevant to the investigation at the time the request is sent out. Any queries
about the scope of an information request or the time given to respond
should be raised with the case team as soon as possible.
Giving advance notice and using draft information requests
6.7 In appropriate cases, the CMA will seek to give recipients of large
information requests advance notice so that they can manage their
resources accordingly.
6.8 In certain circumstances, where it is practical and appropriate to do so, the
CMA may send the information request in draft. The CMA can then take into
account comments on the scope of the request, the actions that will be
needed to respond, and the deadline by which the information must be
received. The time frame for comment on the draft will depend on the nature
and scope of the request.
Responding to a written information request
6.9 The written information request will also set a deadline by which the
response must be received.
6.10 The deadline specified in the information request will depend on the nature
and the amount of information that the CMA has requested. If a request has
been provided in draft and the timescale for response to the final request
already discussed, the CMA will only agree to an extension in exceptional
circumstances, so as to minimise any delay to the investigation. In all
circumstances, recipients must provide reasons for requesting an extension
to the deadline set for response.
6.11 Where a recipient has a complaint about the deadline set for a response to a
written information request, the recipient should raise this as soon as
21
possible with the SRO. If it is not possible to resolve the dispute with the
SRO, the recipient may refer the matter to the Procedural Officer.31
6.12 The CMA expects recipients to comply fully with any information request
within the given deadline. This is especially the case where the CMA has
engaged with them on the scope and purpose of the request and the
proposed deadline for its completion, in order to help them comply. The CMA
can fine any person who fails, without reasonable excuse, to comply with a
formal information request.32 This may be either a fixed or daily penalty, or a
combination of the two, depending on what is appropriate in the
circumstances.33 It is also a criminal offence punishable by fine and/or
imprisonment to provide false or misleading information,34 or to destroy,
falsify or conceal documents35 (subject in each case to certain defences or
conditions set out in the CA98).
6.13 Unless otherwise indicated, the response should be sent to the case team in
electronic format. The process for providing representations where a
response contains commercially sensitive information or details of an
individual's private affairs and the sender considers that disclosure might
significantly harm their interests or the interests of the individual, is detailed
in Chapter 7.
Power to require individuals to answer questions
6.14 The CMA can require any individual who has a ‘connection with'36 a
business which is a party to the investigation to answer questions on any
matter relevant to the investigation after giving formal written notice.37 This
may be a current connection or a former connection, for example where the
31 See Chapter 15 and Rule 8 of the CA98 Rules. See Procedural Officer: raising procedural issues in CMA
cases, for further details.
32 Any decision to impose a penalty for failure to comply with a formal information request may take into account
whether the CMA had issued a draft information request and set a deadline for compliance with the final
information request that reflected comments received on the draft request from that party. For more
information on potential financial penalties for failing to comply with the CMA’s powers of investigation see
Administrative Penalties: Statement of policy on the CMA’s approach (CMA4).
33 Section 40A of the CA98. Failure to comply includes failures to answer questions asked by the CMA, failures
to produce documents required by the CMA, or failures to provide adequate or accurate information in
response to any requirement imposed on a person under section 26, 26A, 27, 28 or 28A of the CA98. See
CMA guideline Administrative Penalties: Statement of policy on the CMA’s approach (CMA4).
34 Section 44 of the CA98.
35 Section 43 of the CA98. 36 Section 26A(6) of the CA98 describes the meaning of ‘connection with’ an undertaking, being an individual
who ‘is or was (i) concerned in the management or control of the undertaking, or (ii) employed by, or
otherwise working for, the undertaking’.
37 Section 26A of the CA98. This power was introduced by the ERRA13.
22
individual used to work for the undertaking under investigation. The CMA will
determine whether an individual has a ‘connection with’ the relevant
undertaking on a case-by-case basis, taking account of the circumstances of
the case.38
6.15 The CMA will give a formal notice to the person it wishes to interview,
informing them that it intends to ask questions under formal powers. The
notice will explain what the CMA’s investigation is about, give details of when
and where the questions will be asked or the interview will take place (which
could be immediately after receipt of the notice – see paragraphs 6.18 to
6.20 below). It also sets out both the penalties that the CMA may impose if
the recipient fails, without reasonable excuse, to comply with the formal
notice to answer the CMA’s questions39 and the statutory limitations on the
use against them of statements made in the interview.40
6.16 Where the individual the CMA wishes to interview has a current connection
with the relevant undertaking at the time the formal notice is given,41 the
CMA must also give a copy of the notice to that undertaking.42 The CMA will
take such steps as are reasonable in all the circumstances to provide the
notice before the interview takes place. In general, the CMA will provide a
copy of a notice to a relevant undertaking at the same time as, or as soon as
reasonably practicable after, giving the notice to the individual. 43
38 An individual who has a ‘connection with’ a business could include current or former directors, partners or
equivalent officers; any person exercising management functions of any sort; temporary or permanent
employees, consultants, volunteers or contract staff; professional advisers or any other person who has
advised the business; and/or officers or controllers of shareholders that exercise or have exercised any
degree of ‘control’ of the relevant business. A person does not need to have received a salary, fee,
allowance, equity share, capital gain, or any other form of remuneration or payment from a business in order
to have a ‘connection with’ a relevant business. For these purposes, a 'director' includes any person
occupying the position of director, by whatever name called. This includes a person formally appointed to a
company board, as well as any person who assumes to act as a director (a de facto director). It also includes
a 'shadow director', defined as any person in accordance with whose directions or instructions the directors of
a company are accustomed to act (other than advice given purely in a professional capacity).
39 Section 40A of the CA98. For more information on potential financial penalties for failing to comply with the
CMA’s powers of investigation see Administrative Penalties: Statement of policy on the CMA’s approach
(CMA4).
40 Section 30A(2) and (3) of the CA98 provide that a statement obtained from an individual through the use of
the CMA’s formal interview powers may only be used as evidence against that individual on a prosecution for
an offence in providing false or misleading information, or on a prosecution for some other offence where in
giving evidence in the proceedings the individual makes a statement that is inconsistent with the statement
obtained by the CMA and evidence relating to the latter statement is adduced, or a question relating to it is
asked, by or on behalf of the individual.
41 See footnote 36 above.
42 Section 26A(2) of the CA98.
43 Section 26A(3) of the CA98 requires the CMA to ‘take such steps as are reasonable in all the circumstances
to comply with the requirement [to provide a copy of the interview notice at the time it is given to the
23
6.17 Any queries about the details of an interview notice should be raised with the
case team as soon as possible.
Conduct of interviews
6.18 As indicated above, in certain circumstances the CMA may interview an
individual under formal powers immediately after giving a formal notice to
that person.44
6.19 This may include, for example, where the CMA considers that an individual
may have information that would enable the CMA to take steps to prevent
damage to a business or consumers, or where the effective conduct of the
investigation means that the CMA considers it necessary to ask an individual
questions about facts or documents immediately after having given a notice
(which will generally be during the course of an inspection pursuant to the
CMA’s power to enter premises).
6.20 Ordinarily interviews will be recorded, but in circumstances where this is
unnecessary or impracticable a contemporaneous note will be taken of the
questions and the interviewee’s response. The interviewee will be asked to
read through and check any transcript of the recording or the questions and
answers in the note and to confirm, in writing, that they are an accurate
account of the interview.45 Further information on the CMA’s approach to
handling confidential information can be found in Chapter 7. The CMA will
not seek comments on accuracy and representations on confidentiality of the
transcript (or note) of the interview until it is satisfied that it can do so without
risk to the investigation.
Can a legal adviser be present?
6.21 Any person being formally questioned or interviewed by the CMA may
request to have a legal adviser present to represent their interests. In some
individual]...before the time at which the individual is required to answer questions.’ The CMA may consider
that, in all the circumstances, it is not in a position to provide a copy of the formal interview notice to the
relevant undertaking before conducting an interview, for example where a delay in conducting an interview
may compromise the investigation or otherwise undermine the CMA’s ability to exercise its functions under
the CA98.
44 Section 26A(1) of the CA98.
45 The CMA will also send a copy of the transcript or note to any undertaking with which the individual has a
‘current connection’, and to which the CMA has given a copy of the formal interview notice pursuant to section
26A(2) of the CA98, to allow such undertaking(s) to make confidentiality representations to the CMA.
Additionally, if appropriate, the CMA will send a copy of the transcript or note to any undertaking with which
the individual has a ‘former connection’, to allow such undertaking to make confidentiality representations to
the CMA.
24
cases, an individual may choose to be represented by a legal adviser who is
also acting for the undertaking under investigation.46 While the CMA
recognises that the interview power may be used in a range of
circumstances, the starting point for the CMA is that it will be generally
inappropriate for a legal adviser only acting for the undertaking to be present
at the interview.47 The CMA also considers that in certain circumstances
there may be a risk that the presence at the interview of a legal adviser only
acting for the business will prejudice the investigation, for example if their
presence reduces the incentives on the individual being questioned to be
open and honest in their account. In cases where the CMA wishes to
question a person having entered into premises as described at paragraph
6.38 below, the questioning may be delayed for a reasonable time to allow
the individual’s legal adviser to attend.48 During this time, the CMA may
make this subject to certain conditions for the purpose of reducing the risk of
contamination of witness evidence. Such conditions could include requesting
that a CMA officer accompanies the individual in the period before the
interview takes place and/or suspending the individual’s use of electronic
devices, including telephones.
Power to enter premises
6.22 In some cases, the CMA will visit premises to obtain information. The power
the CMA uses to gain entry will depend on whether the CMA intends to
inspect business premises49 (such as an office or a warehouse) or domestic
premises50 (such as the home of an employee).
6.23 Under certain circumstances the CMA can enter business premises, but not
domestic premises, without a warrant. Where the CMA has obtained a
46 In these circumstances the CMA will refer the individual and the legal adviser to the Solicitors Regulation
Authority’s Guidance on Employer’s solicitors attending Health and Safety Executive interviews with
employees (‘the Guidance’) (17 March 2006 – revised 5 February 2014). The Guidance states that if a
solicitor is asked to act for both the employer and the employee, the solicitor should give careful consideration
before deciding whether to accept instructions due to the risk of a conflict of interest (see section 2). It also
states that investigations by other similar authorities may give rise to similar considerations (see section 9).
47 This includes the reasons set out in the Guidance (referred to in the preceding footnote), which identifies the
precautions to be taken by a solicitor acting for the employer only, but considers that it is difficult to justify the
employer’s solicitor accompanying the employee to the interview (see section 5). It also highlights the public
interest concerns if the presence of the employer’s solicitor inhibits the employee from making a full and
proper disclosure of the facts (see section 5).
48 Rule 4 of the CA98 Rules.
49 Business premises are defined as meaning any premises (or part of any premises) not used as a dwelling,
section 27(6) of the CA98. 50 Domestic premises are defined as premises (or any part of premises) used as a dwelling, and also used in
connection with the affairs of an undertaking or association of undertakings, or where documents relating to
the affairs of an undertaking or association of undertakings are kept, section 28A(9) of the CA98.
25
warrant51 in advance of entry, the CMA can enter and search both business
and domestic premises. These two powers (to enter premises without a
warrant and to enter premises with a warrant) are explained below.
6.24 The occupier of the premises does not have to be suspected of having
breached competition law.52
Entering premises without a warrant53
6.25 A CMA officer who is authorised by the CMA in writing to enter premises but
does not have a warrant may enter business premises in connection with an
investigation if they have given the premises' occupier at least two working
days' written notice.54
6.26 In certain circumstances, the CMA does not have to give advance notice of
entry.55 For example, the CMA does not have to give advance notice if it has
reasonable suspicion that the premises are, or have been, occupied by a
party to an agreement that the CMA is investigating or a business whose
conduct the CMA is investigating, or if a CMA authorised officer has been
unable to give notice to the occupier, despite taking all reasonably
practicable steps to give notice.
What powers does the CMA have when entering business premises without a
warrant?
6.27 When an inspection without a warrant is taking place, CMA officers may
require any person to:
• produce any document that may be relevant to the CMA’s investigation –
CMA officers can take copies of, or extracts from, any document
produced
• provide an explanation of any document produced, and/or
51 From the High Court of England and Wales or Northern Ireland, the Court of Session in Scotland, or the
Competition Appeal Tribunal.
52 For example, the CMA could enter the premises of a supplier or a customer of the business suspected of
breaching the law, so long as the CMA has taken all reasonably practicable steps to notify them in advance of
the CMA’s intended entry.
53 Section 27 of the CA98.
54 The written notice will set out what the investigation is about and the criminal offences that may be committed
if a person fails to comply. 55 Section 27(3) of the CA98.
26
• tell the CMA where a document can be found if CMA officers consider it
to be relevant to the investigation.
6.28 CMA officers may also require any relevant information electronically stored
to be produced in a form that can be read and taken away, and they may
also take steps necessary to preserve documents, including electronic
material, or prevent interference with them.56
Entering and searching premises with a warrant57
6.29 The CMA can apply to the court58 for a warrant to enter and search business
or domestic premises.
6.30 The CMA would usually seek a warrant to search premises where the CMA
suspects that the information relevant to the investigation may be destroyed
or otherwise interfered with if the CMA requested the material via a written
request. Therefore, the CMA mostly uses this power to gather information
from businesses or individuals suspected of participating in a cartel.
What powers does the CMA have when entering premises with a warrant?
6.31 Where an inspection is carried out under a warrant, CMA officers are
authorised to enter premises using such force as is reasonably necessary,
but only if they are prevented from entering the premises. CMA officers
cannot use force against any person.
6.32 In addition to the CMA’s powers described above, the warrant also
authorises CMA officers59 to search the premises for documents that appear
to be of the kind covered by the warrant and take copies of or extracts from
them.60
56 Section 27(5) of the CA98.
57 Section 28 of the CA98 in relation to business premises. Section 28A of the CA98 in relation to domestic
premises. 58 The High Court in England and Wales or Northern Ireland, the Court of Session in Scotland, or the
Competition Appeal Tribunal.
59 Other persons, such as IT specialists or industry experts, may also be authorised to carry out specific tasks
under the supervision of authorised CMA officers. 60 For business premises, section 28(2)(b) of the CA98. For domestic premises, section 28A(2)(b) of the CA98.
27
6.33 The search may cover offices, desks, filing cabinets, electronic devices such
as computers, mobile phones and tablets, as well as any documents, on the
premises. The CMA can also take away from the premises:61
• original documents that appear to be covered by the warrant if the CMA
thinks it is necessary to preserve the documents or prevent interference
with them or where it is not reasonably practicable to take copies of them
on the premises
• any document, or copies of it, to determine whether it is relevant to the
investigation, when it is not practicable to do so at the premises. If the
CMA considers later on that the information is outside the scope of the
investigation, the CMA will return it62
• any relevant document, or copies of it, contained in something else
where it is not practicable to separate out the relevant document at the
premises. As above, the CMA will return information if the CMA
considers later on that it is outside the scope of the investigation, and/or
• copies of computer hard drives, mobile phones, mobile email devices
and other electronic devices.
6.34 At the end of the inspection, the CMA officer will provide, where practicable,
a list of documents and/or extracts that have been taken.
What will happen upon arrival?
6.35 The CMA’s authorised officers will normally arrive at the premises during
office hours. On entry, they will provide evidence of their identity, written
authorisation by the CMA, and a document setting out what the investigation
is about and describing what criminal offences may be committed if a person
fails to co-operate. A separate document will also be provided that sets out
the powers of the authorised officers and the right of the occupier to request
that a legal adviser is present.
6.36 Where the CMA has obtained a warrant, the CMA officer will produce it on
entry. The warrant will list the names of the CMA officers authorised to
61 For business premises, section 28(2)(c) of the CA98. For domestic premises, section 28A(2)(c) of the CA98.
The CMA can only retain these documents for a maximum period of three months (for business premises,
section 28(7) of the CA98. For domestic premises, section 28A(8) of the CA98). 62 However, the CMA may retain all of the material if it is not reasonably practicable to separate the
relevant information from the irrelevant information without prejudicing its lawful use, for example as
evidence.
28
exercise the powers under the warrant and will state what the investigation is
about and describe the criminal offences that may be committed if a person
fails to co-operate.
6.37 Where possible, the person in charge at the premises should designate an
appropriate person to be a point of contact for CMA authorised officers
during the inspection.
Can a legal adviser be present?
6.38 The occupier may ask legal advisers to be present during an inspection,
whether conducted with or without a warrant. If the occupier has not been
given notice of the visit, and there is no in-house lawyer on the premises,
CMA officers may wait a reasonable time for legal advisers to arrive.63
6.39 During this time, the CMA may take necessary measures to prevent
tampering with evidence or warning other businesses about the
investigation.64
What if there is nobody at the premises?
6.40 If there is no one at the premises when CMA officers arrive, the officers must
take reasonable steps to inform the occupier that the CMA intends to enter
the premises. Once the CMA has informed them, or taken such steps as it is
able to inform them, the CMA must allow the occupier or their legal or other
representative a reasonable opportunity to be present when the CMA carries
out a search under the warrant.65
6.41 If CMA officers have not been able to give prior notice, the CMA must leave
a copy of the warrant in a prominent place on the premises. If, having taken
the necessary steps, the CMA has entered premises that are unoccupied,
upon leaving those premises the CMA must leave them secured as
effectively as they were found.66
63 Rule 4 of the CA98 Rules.
64 This could include sealing filing cabinets, keeping business records in the same state and place as when
CMA officers arrived, suspending external email or the making and receiving of calls, and/or allowing CMA
officers to enter and remain in offices of their choosing. It may be a criminal offence to tamper with evidence
protected in this way.
65 Rule 4 of the CA98 Rules.
66 For business premises, section 28(5). For domestic premises, section 28A(6) of the CA98.
29
Voluntary provision of information
6.42 There may be circumstances under which a business may seek to provide
information and documents voluntarily to the CMA. The business should
discuss any voluntary provision with the case team prior to sending any
material.
Return of information
6.43 Where it considers it appropriate, the CMA may return information it has
gathered during the course of an investigation (irrespective of how that
information has been obtained).67 The CMA may return information where,
after careful review, the CMA considers it is duplicate information or
information that is outside the nature and scope of the investigation,
including where information falls outside the scope of the investigation as a
result of that scope having changed. Any such information that is returned
will no longer form part of the CMA’s investigation file.68
67 As noted, however, the CMA may retain all of the information or materials it has gathered in the course of its
investigation if it is not reasonably practicable to separate the relevant information from the irrelevant
information.
68 The CMA file will include all information which remains relevant to the investigation.
30
7 Limits on the CMA’s powers of investigation
Privileged communications
7.1 Under the CA98, the CMA is not allowed to use its powers of investigation to
require anyone to produce or disclose69 privileged communications.
7.2 Privileged communications are defined in the CA98.70 They include
communications, or parts of such communications, between a professional
legal adviser and their client for the purposes of giving or receiving legal
advice, or those which are made in connection with, or in contemplation of,
legal proceedings, and for the purposes of those proceedings. For example,
this would cover a letter from a company's lawyer to the company advising
on whether a particular agreement infringed the law.
7.3 If there is a dispute during an inspection as to whether communications, or
parts of communications, are privileged, a CMA officer may request that the
communications are placed in a sealed envelope or package. The officer will
then discuss the arrangements for the safe-keeping of these items by the
CMA pending resolution of the dispute.
Privilege against self-incrimination
7.4 When the CMA requests information or explanations, the CMA cannot force
a business to provide answers that would require an admission that it has
infringed the law.71 The CMA can, however, ask questions about or ask for
the production of any documents already in existence, or information relating
to facts, such as whether a given employee attended a particular meeting.
7.5 The law on privilege is complicated. As investigators of a possible
infringement, the CMA is not able to advise on the circumstances in which a
person can claim privilege. Anyone in any doubt about how it applies in
practice should seek independent legal advice.
69 Production of privileged communications may be through providing written documents or orally (for example,
during an interview).
70 Section 30 of the CA98. 71 Privilege against self-incrimination is an aspect of the right to a fair trial guaranteed by Article 6 of the
European Convention on Human Rights. This is given effect in the United Kingdom by the Human Rights Act
1998.
31
Handling confidential information
7.6 During the course of an investigation the CMA acquires a large volume of
confidential information relating to both businesses and individuals.
7.7 There are strict rules governing the extent to which the CMA is permitted to
disclose such information.72 In many instances the CMA may have to redact
documents the CMA proposes to disclose to remove any confidential
information, for example, by blanking out parts of documents or by
aggregating figures.
7.8 During the course of an investigation, the CMA may request confidentiality
representations on the documents held on its file. Any such requests will
generally provide an explanation as to the types of material the CMA
considers are likely to be confidential under Part 9 of the EA02. It may also
include a suggested framework according to which the information provider
should detail any confidentiality representations. A deadline will be set for
provision of confidentiality representations reflecting the extent of the
material provided. Any request for an extension to the deadline, along with
reasons for such a request, should be discussed well in advance of the
deadline with the case team.
7.9 Representations should be provided where a person or business considers
that any information they are giving the CMA, or that the CMA has acquired,
is commercially sensitive or contains details of an individual's private affairs
and that disclosing it might significantly harm the interests of the business or
person. The CMA will not accept blanket or unsubstantiated confidentiality
claims.
7.10 In the event that the CMA does not receive any confidentiality
representations (and has not been notified that none will be provided) within
the deadline stated, the CMA will generally give one further opportunity to
make confidentiality representations. If, after this second opportunity, the
CMA has received no reply, the CMA will assume that no confidentiality is
being claimed in respect of the information.
7.11 The CMA will comply with the provisions of Part 9 of the EA02 when
deciding whether information is confidential and/or whether it may be
appropriate to disclose information for the purposes of facilitating the
exercise of the CMA’s functions under the CA98.
72 Part 9 of the EA02.
32
7.12 The CMA may not agree with the person or business who provided it that the
information in question is confidential,73 or the CMA may agree that the
information is confidential but consider that it is necessary to disclose the
information to the parties in the investigation in order to enable them to
exercise their rights of defence. In such circumstances, the CMA will give the
person or business that provided the information prior notice of the proposed
action and will give them a reasonable opportunity to make representations.
The CMA will then inform the party whether or not the CMA still intends to
disclose the information, after considering all the relevant facts.
7.13 In some cases, the CMA may consider the use of practices such as
confidentiality rings or data rooms at access to file stage to handle the
disclosure of confidential information to a limited group of persons.
7.14 The CMA will only use these procedures where there are identifiable benefits
in doing so and where any potential legal and practical difficulties can be
resolved swiftly in agreement with the parties concerned.74 In such cases,
the person or business that provided the information will be informed of the
proposal and provided with a reasonable opportunity to comment on the
proposal. The CMA will then inform the person or business whether or not it
still intends to use the proposed confidentiality ring and/or data room
arrangement, after considering all the relevant facts.
7.15 Where a person or business is unhappy about the extent and/or method of
disclosure, they should raise this as soon as possible with the SRO. If it is
not possible to resolve the dispute with the SRO, the person or business
may refer the matter to the Procedural Officer.75
7.16 Further information on the CMA’s approach to the treatment and disclosure
of information, including to identifying confidential information, is available in
the guideline Transparency and Disclosure: Statement of the CMA’s policy
and approach (CMA6).
73 Particular types of information that the CMA is unlikely to consider to be ‘confidential’ includes financial
information or certain other data relating to a business that is more than two years old and information that is
already in the public domain or can be readily deduced from information in the public domain.
74 See further detail at Chapter 11. 75 See Chapter 15 and Rule 8 of the CA98 Rules. See the CMA’s webpage, raising procedural issues in CMA
cases, for further details.
33
8 Taking urgent action to prevent significant damage or to
protect the public interest
8.1 The CMA has the power76 to give temporary directions (referred to as
'interim measures') if:
a) the CMA has begun, but not completed, an investigation under
section 25 of the CA98; and
b) the CMA considers that it is necessary for it to act as a matter of
urgency for the purpose of:
i. preventing significant damage to a particular person or
category of person; or
ii. protecting the public interest.
8.2 The CMA can give interim measures directions on its own initiative or in
response to an application for interim measures if it considers that the
conditions set out in paragraph 8.1 are met.
Application for interim measures
8.3 Any person who considers that the alleged anti-competitive behaviour of
another business is causing them significant damage may apply to the CMA
to take interim measures.
8.4 Potential applicants should contact the case team in the first instance77 to
discuss the information requirements and explain the procedure. Where a
person is considering applying for interim measures but the CMA has not
opened an investigation in relation to a relevant alleged infringement, that
person may request a pre-complaint discussion (see paragraph 3.16). When
doing so, that person should indicate their potential interest in making an
interim measures application and the reasons for considering such an
application.
8.5 Applicants should provide as much information and evidence as possible to
demonstrate their case for interim measures and should also indicate as
precisely as possible the nature of the interim measure being sought. The
76 Section 35 of the CA98. 77 In circumstances, where no investigation has been opened, the Senior Director, Antitrust should be
contacted.
34
application should include a declaration of truth78 by the applicant, or a
person authorised to act on behalf the applicant, that:
• to the best of their knowledge and belief, the information and
evidence provided to the CMA in support of the application is
true, correct, and complete in all material particulars; and
• they understand that it is a criminal offence under section 44 of
the CA98 for a person, recklessly or knowingly, to supply to the
CMA information which is false or misleading in a material
particular. This includes providing such information to another
person knowing that the information is to be used for the
purpose of providing information to the CMA.
8.6 The applicant should at the same time submit a separate, non-confidential
version of the information and evidence they have provided in support of
their application and, in an annex clearly marked as confidential, set out
clearly why the redacted information should be regarded as confidential. The
CMA may provide this non-confidential version to the party/ies in relation to
which the application for interim measures has been made to enable the
application to be considered expeditiously, where necessary. More
information about how the CMA handles confidential information is available
at paragraphs 7.6—7.16 above.
8.7 Moreover, the CMA may (such as in particular, to be able to consider the
interim measures application expeditiously) decide that is appropriate for any
unredacted information that the applicant considers confidential to be placed
into a confidentiality ring or data room (see paragraph 8.10 below).79
Decision to impose interim measures
8.8 The CMA has the discretion whether to make an interim measures direction.
The SRO may provisionally decide to give an interim measures direction (a
provisional decision which may follow a complaint or be on the CMA’s own
initiative). In this case, the CMA will write to the business to which the
directions are addressed setting out the terms of the proposed directions and
the reasons for giving them. The CMA will also allow them a reasonable
opportunity to make representations. Given the time-critical nature of the
interim measures process, the time allowed may necessarily be short.
78 A template declaration of truth is provided at Annex A. 79 See paragraphs 11.22 to 11.30 below for further discussion of confidentiality rings and data rooms.
35
8.9 The business to which the directions are addressed will also be allowed a
reasonable opportunity to inspect documents on the CMA’s file that relate to
the proposed directions. ‘Reasonable opportunity’ for these purposes will
depend upon the circumstances of the case, taking into account factors such
as the urgency of the situation and the likely impact of the proposed interim
measures directions on the business to which they are addressed. The CMA
will typically provide only those documents which are relied on in the
proposed directions, due to the need to act as a matter of urgency for the
purpose of preventing significant damage to a particular person or category
of person or protecting the public interest. A schedule of additional
documents on the CMA’s file will be provided with an opportunity for the
business to request documents where necessary for its rights of defence.
8.10 The CMA may withhold any documents to the extent to which they contain
any confidential information (or are internal documents)80. The CMA
considers that it may be appropriate in some circumstances to provide
access to certain documents by using a confidentiality ring or data room,
having regard to the considerations set out in Chapter 11 below.81
8.11 After taking into account any representations, and having satisfied itself as to
the adequacy of the evidence it is relying upon and taking into account all
the circumstances of the case, the CMA will make its final decision and
inform the applicant and the business against which the order is being
sought. The SRO is responsible for deciding whether to give an interim
measures direction. Before taking this decision, the SRO will consult other
senior CMA officials as appropriate.
8.12 In deciding whether the imposition of interim measures is appropriate in the
relevant circumstances, the CMA will seek to ensure that:
• it imposes interim measures only where it has identified specific
behaviour or conduct that it considers is causing or is likely to cause
significant damage to a particular person or category of person, or is or
is likely to be contrary to the public interest; and
• the particular interim measures sought prevent, limit or remedy the
significant damage that the CMA has identified, and are proportionate for
the purpose of preventing, limiting or remedying that significant damage.
80 See Rule 13(2) of the CA98 Rules. 81 See, for example, paragraphs 11.22 to 11.30 below for further discussion of confidentiality rings and data
rooms.
36
8.13 The CMA will assess whether conduct is causing or is likely to cause
significant damage with regard to the facts of the case. In particular, the
CMA will assess the nature of the market(s) in question and the dynamics of
competition within the market(s), the effect the conduct is having or is likely
to have on a particular business or categories of businesses in the
market(s), or the effect that the conduct is having or is likely to have on the
public interest. The CMA will also consider the impact of making such an
interim measures direction on the potential addressee of such a decision and
on other parties, and the extent to which the applicant has taken reasonable
action to seek to avoid or mitigate the significant damage that may arise.
8.14 Damage will be significant where a particular person or category of persons
is or is likely to be restricted in their ability to compete effectively in the
market(s), such that this is causing or is likely to cause significant damage to
their commercial position. Damage can include actual or potential:
• financial loss to a person or class of persons (to be assessed with
reference to that person‘s size or financial resources as well as the
proportion of the loss in relation to the person‘s total revenue);
• restriction on a person’s or class of persons’ ability to obtain supplies
and/or access to customers; and
• damage to the goodwill or reputation of a person or class of persons.
8.15 Significant damage may be temporary or permanent – it does not require
that the damage is irreparable, and/or that any business will or may exit the
market(s) in question. The CMA will take into account the facts of the case,
the nature of competition in the relevant market(s) and the potential duration
of the interim measures in determining the period over which the relevant
damage is to be assessed.
8.16 The CMA may also consider that it is necessary to act urgently to protect the
public interest, for example, to prevent damage being caused to a particular
industry, to consumers, or to competition more generally as a result of the
suspected infringement. In determining whether interim measures may be
appropriate in order to protect the public interest, the CMA will have
particular regard to the effect or potential effect that the relevant conduct is
having, or is likely to have, on consumers or categories of consumers.
8.17 Possible content of interim measures could include requiring a party to:
• continue the supply of goods, services or other inputs (for example,
access to essential infrastructure) where that supply is required to
37
prevent significant damage to a person or persons in the market(s) or
any associated market(s) in question, or to enable customers to obtain
access to goods or services; and
• reverse a price increase or decrease for any goods or services where
that price increase or decrease has or is likely to cause significant
damage to any person’s or category of persons’ ability to compete
effectively or is likely to cause a detriment to the public.
8.18 Where the investigation concerns an agreement, the CMA will not seek
interim measures where the CMA is satisfied that, on the balance of
probabilities, the agreement meets the conditions for an individual exemption
from the prohibition against anti-competitive arrangements.82
8.19 The SRO will assess each situation on a case-by-case basis to make a
provisional decision as to whether interim measures may be appropriate in
any particular scenario.
8.20 In most cases, interim measures will have immediate effect. However, if a
person fails to comply with them without reasonable excuse, the CMA may
apply to court for an order to require compliance within a specified time limit.
8.21 The court can require the person in default or any officer of a business
responsible for the default to pay the costs of obtaining the order.
8.22 If the measures relate to the management or administration of a business,
the court order can compel the business or any of its officers to comply with
them. Failure to comply with a court order will be in contempt of court.
Rejecting an application for interim measures
8.23 If the SRO provisionally decides to reject an application for interim
measures, the CMA will consult the applicant before doing so by sending a
provisional dismissal letter setting out the principal reasons for rejecting the
application. The CMA will give them an opportunity to submit comments
and/or additional information within a certain time, the length of which will
depend on the case.
8.24 If the comments from the applicant contain confidential information, a
separate non-confidential version must be submitted at the same time (see
Chapter 7 on handling confidential information). The CMA may provide this
82 Section 9(1) of the CA98 and/or Article 101(3) of the TFEU.
38
non-confidential version to the business under investigation if, in the CMA’s
view, it would be appropriate to do so, such as where it may be relevant for
the rights of defence.
8.25 The CMA will consider any comments and further evidence submitted within
the specified time limit. After considering the additional information provided,
if the SRO still decides to reject the application, the CMA will send a letter to
the applicant and normally the business against which the directions are
sought to inform them and give the CMA’s reasons.
8.26 However, if the comments and/or additional information from any of these
parties leads the SRO to change his/her provisional view and to decide that
the CMA should make an interim measures direction, the CMA will inform the
applicant and the business against which the directions are sought, and the
investigation will continue in the normal way.
Publication
8.27 The CMA’s interim measures directions are included in the public CA98
register and the CMA would generally expect to publish a summary of any
such directions on its webpage. The CMA may also publish them in an
appropriate trade journal.
39
9 Analysis and review
9.1 The evidence that the CMA gathers using the powers described in Chapter 6
is fundamental to the outcome of an investigation. Throughout an
investigation, the CMA routinely reviews and analyses the information in the
CMA’s possession to test the factual, legal and economic arguments and to
establish whether it supports or contradicts the theory/ies of competition
harm.
9.2 In some cases, an investigation may start out by probing a particular set of
circumstances that points to conduct of one type, but information may later
surface which indicates the existence of another type of potentially anti-
competitive behaviour or a different theory of competition harm from that
advanced earlier in the investigation. Alternatively, the CMA’s early analysis
may suggest that a large number of businesses have been acting unlawfully
but later on it emerges that the CMA only has enough evidence to warrant
further investigation of some of those businesses. The CMA may also
exercise its administrative discretion to focus resources on investigating a
limited set of activities or businesses.
Internal scrutiny
9.3 The CMA regularly scrutinises the way it handles the investigation and
routinely assesses the evidence before it, to ensure that its actions and
decisions are well-founded, fair and robust. This involves seeking internal
advice from specialist advisers on the legal, policy and economic issues that
arise throughout the investigation. In some instances, the CMA may also
seek advice from external sources, such as external counsel.
9.4 The General Counsel and the Chief Economic Adviser are responsible for
ensuring that there has been a thorough review of the robustness of the
legal and the economic analysis (and of the evidence being used to support
this), respectively, before a Statement of Objections is issued or a final
decision on infringement is taken. This includes ensuring the decision
maker(s) is/are aware of any significant risks before the decision to issue a
Statement of Objections or a final infringement decision is taken.
9.5 The General Counsel and the Chief Economic Adviser (or their
representative(s)) will attend the oral hearing on liability and may ask
questions of the parties.
9.6 The SRO decides whether:
• there are sufficient grounds to open a formal investigation;
40
• there is sufficient evidence to issue a Statement of Objections;
• to close a case prior to issue of a Statement of Objections;
• to make an interim measures direction;83
• to accept commitments offered by a party under investigation;84 and
• a case is appropriate for settlement.85
In addition to taking advice from specialist advisors as detailed above, the
SRO will consult two other senior officials as appropriate at key stages of the
investigation prior to issuing a Statement of Objections. The SRO will consult
and where appropriate seek approval from the Case and Policy Committee86
in relation to decisions on commitments and settlement.
9.7 Where a Statement of Objections is issued, a Case Decision Group87 is
appointed by the Case and Policy Committee to act as the decision-maker
on whether, based on the facts and evidence before it, the legal test for
establishing an infringement has been met. Before taking this decision, the
Case Decision Group will be made aware of any significant legal risks or
risks on the economic analysis (as described in paragraph 9.4), and may
consult the Case and Policy Committee.
Sharing the CMA’s early thinking and giving regular updates
9.8 The time taken to establish the facts and whether they point to an
infringement of competition law will vary from case to case depending on a
range of factors such as the number of parties under investigation, the extent
to which they cooperate with the CMA, and the complexity of the conduct
under consideration.
9.9 The CMA generally provides case updates to businesses under investigation
either by telephone or in writing. The CMA will also offer each party under
investigation separate opportunities to speak with representatives of the
case team (which may include the SRO) to ensure that they are aware of the
83 See paragraphs 8.8 to 8.26.
84 See paragraphs 10.15 to 10.16.
85 See paragraph 11.4. See Chapter 14 for more information on settlement.
86 The Case and Policy Committee operates under delegated authority from the CMA Board. The purpose of the
Case and Policy Committee includes overseeing and scrutinising the development of CMA casework,
projects, decisions and policy relating to the CA98 and the equivalent provisions of the TFEU.
87 See paragraph 11.31.
41
stage the investigation has reached.88 At 'state of play' meetings, which may
be held by telephone or video conference, parties will be provided with
further information on the nature and scope of the investigation. In particular,
the CMA will inform parties of the next stages of the investigation and the
likely timing of these, subject to any restrictions the CMA may have if the
timing is market sensitive.89 The CMA may also share the case team’s
provisional thinking on a case, where the investigation is sufficiently
advanced (see paragraph 9.10 below).
9.10 The CMA will usually hold a state of play meeting once it has undertaken
some investigatory steps and invite parties to a further state of play meeting
before a decision is taken on whether to issue a Statement of Objections. At
this further state of play meeting the CMA will be able to update parties on its
provisional thinking on the case, including the key potential competition
concerns identified.
9.11 In all cases where a Statement of Objections is issued, the CMA will provide
an update, usually by telephone, to each party after it has received all
parties’ written and (where applicable) oral representations on the Statement
of Objections. At least one member of the Case Decision Group and the
case team will be on the call. The CMA will update parties on its preliminary
views on how the CMA intends to proceed with the case in light of the written
and oral representations that have been received.
9.12 In appropriate circumstances, the CMA may also have discussions with
parties on other occasions. This may be where they have new information
that can materially assist the CMA in taking forward the case. Parties who
believe that an oral update of this kind would be useful should contact the
case team in the first instance to discuss the matter.
9.13 As a matter of routine, the CMA will keep parties to the investigation
informed of the anticipated case timetable and any changes to this, as well
as publishing and updating this information on the relevant case page.90
9.14 If a party has a concern or complaint about the CMA’s procedures or the
handling of a case, it should contact the SRO in the first instance. If the party
88 On occasion, the CMA may, if the CMA considers it useful or appropriate, invite the parties under
investigation to a multi-party meeting. For example, the CMA may consider offering a multi-party meeting
where there are differing views on a key issue such as market definition or differing interpretations offered in
respect of a key piece of evidence.
89 As to market sensitivity considerations, see Transparency and Disclosure: Statement of the CMA’s policy and
approach (CMA6). 90 See Chapter 5.
42
is unable to resolve the dispute with the SRO, certain procedural complaints
may be referred to the Procedural Officer.91 If a dispute falls outside the
scope of the Procedural Officer’s role, the CMA publication Transparency
and Disclosure: Statement of the CMA’s policy and approach (CMA6) sets
out the options available to pursue the complaint.
91 See Chapter 15 and Rule 8 of the CA98 Rules. See Procedural Officer: raising procedural issues in CMA
cases, for further details.
43
10 Investigation outcomes
10.1 CMA investigations can be resolved in a number of ways. The CMA:
• can decide to close an investigation on grounds of administrative
priorities (see paragraphs 10.2 – 10.12);
• can issue a decision that there are no grounds for action if the CMA has
not found sufficient evidence of an infringement of competition law (see
paragraphs 10.13 – 10.14);
• can accept commitments from a business relating to its future conduct
where the CMA is satisfied that these commitments address the
competition concerns (see paragraphs 10.15 – 10.29); and
• will issue a Statement of Objections where the CMA’s provisional view is
that the conduct under investigation amounts to an infringement of
competition law (see Chapter 11 below). After allowing the business/es
under investigation an opportunity to make representations on the
Statement of Objections (see Chapter 12 below), if the CMA still
considers that they have committed an infringement, the CMA can issue
an infringement decision against them and impose fines and/or
directions to bring to an end any ongoing anti-competitive conduct.
Closing investigations on the grounds of administrative priorities
10.2 Not all of the CMA’s investigations result in a finding that there has been a
breach of competition law. The CMA may decide that a formal investigation
no longer merits the continued allocation of resources because it no longer
fits within the CMA’s casework priorities and/or because the CMA does not
have sufficient evidence in its possession to determine whether a breach has
been committed and the CMA considers that further investigation is not
warranted. The CMA may take this decision at any stage of the
investigation.92
10.3 If the CMA is considering closing an investigation on the grounds of
administrative priorities, the CMA may, where it considers it appropriate,
inform in writing any complainants whose complaint led to the investigation
92 The SRO is responsible for deciding whether to close a case on administrative priorities grounds prior to
issue of a Statement of Objections (see paragraph 9.6 for further information on the decision making process).
After any Statement of Objections has been issued, case closure decisions are the responsibility of the Case
Decision Group.
44
and whose interests are, in the CMA’s view, directly and materially affected
by the outcome of the CMA’s investigation, setting out the principal reasons
for not taking forward the investigation. The amount of detail given will vary
according to the circumstances of each case. In more advanced
investigations, the CMA is likely to give more details than in the case of
complaints which have not been the subject of extensive investigation.
10.4 The CMA will assess whether a complainant93 is directly and materially
affected by the outcome of the CMA’s investigation’ on the basis of the
information it has provided to the CMA. This may include complainants who
are:
• actual or potential competitors of the business or businesses under
investigation who allege that the agreement or conduct under
investigation restricts their ability to compete effectively;
• customers of the business or businesses under investigation who
allege that they have been harmed by the activity; and
• a trade or consumer association that alleges that some or all of its
members have been harmed by the agreement or conduct under
investigation.
10.5 The CMA will give such complainants an opportunity to submit their
comments or any additional information within a specified time frame. The
time frame provided will depend on the circumstances of the case, but will
generally be no longer than four weeks.
10.6 If that complainant's response contains confidential information, it will be
asked to submit a separate non-confidential version at the same time (see
Chapter 7 on handling confidential information). The CMA may provide this
to the business/es the CMA is investigating if the CMA thinks it appropriate,
such as if it is likely to change the CMA’s preliminary view.
10.7 The CMA will also give a copy of the provisional closure letter to the
business/es under investigation, giving them an opportunity to comment
within the same time frame.
93 Or a third party when considering requests for disclosure of a Statement of Objections.
45
10.8 The CMA will consider any comments and further evidence submitted within
the specified time limit before reaching a final view on whether to close an
investigation.
10.9 If the CMA decides to close the case, the CMA will write to any complainants
whose comments it has sought in accordance with paragraphs 10.4 and 10.5
above, as well as the business under investigation, explaining why any
additional information sent to the CMA has not led the CMA to change its
view. The level of detail given will depend on the case and the nature of the
additional information provided.
10.10 In these circumstances, the CMA may also issue a warning or advisory letter
to the business under investigation to inform it that the CMA has been made
aware of a possible breach of competition law by that business and that,
although the CMA is currently not minded to pursue an investigation, it may
do so in the future if its priorities change (for example, in response to further
evidence received).94
10.11 The CMA will also issue a public statement linking to the case page on
www.gov.uk/cma and explain why the CMA has closed the case on
administrative priority grounds.
10.12 If the response to the CMA’s provisional closure letter leads the CMA to
change its preliminary view and decide that an investigation should be
continued, the CMA will inform the company under investigation and the
complainant in question and continue the investigation in the normal way.
Issuing a no grounds for action decision
10.13 If the CMA does not find sufficient evidence of a competition law
infringement, the CMA may publish a reasoned no grounds for action
decision when closing the case.95
10.14 In such cases, the CMA may, where it considers it appropriate, provide a
non-confidential version of its proposed decision to the any complainant
whose complaint led to the investigation and whose interests are, in the
CMA’s view, directly and materially affected by the outcome of the CMA’s
94 See paragraph 4.3 above. 95 Rule 10 of the CA98 Rules.
46
investigation.96 The consultation process on the proposed decision will be
the same as for closure on the ground of administrative priorities.
Accepting commitments on future conduct
10.15 If the CMA considers that the case gives rise to competition concerns,
instead of continuing its investigation (which may result in the CMA issuing
an infringement decision), the CMA may be prepared to accept binding
promises, called 'commitments', from a business, relating to its future
conduct.97 The CMA must be satisfied that the commitments offered address
its competition concerns.
10.16 Commitments may be structural or behavioural in nature, or a combination of
both. For example, they may involve a business agreeing to cease or modify
its conduct, terminating an arrangement, removing a particular clause from
an agreement, withdrawing from a particular activity, licensing specific
assets, or even divesting itself of part of its business.
Circumstances in which it may be appropriate to accept commitments
10.17 The decision to accept commitments is at the CMA’s discretion.
10.18 The CMA is likely to consider it appropriate to accept commitments only in
cases where the competition concerns are readily identifiable, will be
addressed by the commitments offered, and the proposed commitments can
be implemented effectively and, if necessary, within a short period of time.
10.19 The CMA is very unlikely to accept commitments in cases involving secret
cartels between competitors98 or a serious abuse of a dominant position.99
10.20 The CMA will not accept commitments in circumstances:
• where compliance with and the effectiveness of any commitments
would be difficult to discern; and/or
96 See paragraph 10.4 for examples of when a complainant is likely to be regarded as being “directly and
materially affected by the outcome of the CMA’s investigation”. 97 Section 31A of the CA98. 98 These include cartels relating to price-fixing, bid-rigging (collusive tendering), establishing output restrictions
or quotas, market sharing. 99 That is, those which the CMA considers are most likely by their very nature to harm competition. In relation to
infringements of the Chapter II prohibition and/or Article 102, this will typically include conduct which is
inherently likely to have a particularly serious exploitative or exclusionary effect, such as excessive and
predatory pricing.
47
• where it considers that not to complete its investigation and make a
decision would undermine deterrence.
Procedure
10.21 A business under investigation can offer commitments at any time during the
investigation, until a decision on infringement is made. However, the CMA is
unlikely to consider it appropriate to accept commitments at a very late stage
in an investigation, such as after the CMA has considered representations
on the Statement of Objections. The CMA has a broad discretion in
determining which cases are suitable for commitments.
10.22 If a business would like to discuss offering commitments, it should contact
the case team in the first instance. The CMA may ask, for example, at a
State of Play meeting, whether the business wishes to offer commitments.100
If, following that contact, the CMA thinks that commitments may be
appropriate, the CMA will send a summary of its competition concerns to the
business101 (where the case is still at pre-Statement of Objections stage).
Once commitments have been offered, the CMA may discuss these with the
business to see if they would be acceptable to the CMA.
10.23 If the CMA proposes to accept the commitments offered, the CMA will
consult those who are likely to be affected by them and give them an
opportunity to give their views within a time limit of at least 11 working
days.102 After receipt of the responses to this consultation, the CMA will hold
a meeting with each business that offered commitments to inform them of
the general nature of responses received and to indicate whether the CMA
considers that changes are required to the commitments before the CMA
would consider accepting them.
10.24 If the business/es offer revised commitments including significant changes,
the CMA will allow another opportunity for complainants and any other third
parties to express their views within a time limit of at least six working days.
10.25 The SRO is responsible for deciding whether to accept the commitments
offered, having consulted with the Case and Policy Committee and other
senior CMA officials as appropriate. The SRO's decision will require the
100 The business is under no obligation to do so and this is without prejudice to the outcome of the investigation. 101 Such a summary is not a replacement for a statement of objections. It will set out the CMA’s competition
concerns and a summary of the main facts on which those concerns are based. However, it will not generally
include detail of the source of the facts on which the CMA relies. 102 Procedural requirements for the acceptance or variation of commitments are set out in Part 1 of Schedule 6A
to the CA98.
48
approval of the Case and Policy Committee before the commitments can be
formally accepted by the CMA. Once accepted, the CMA will publish the
commitments on its webpages.
Decision to accept commitments
10.26 Once commitments have been accepted in respect of an agreement or
conduct, the CMA may not continue its investigation, make an infringement
decision or give interim measures directions in relation to the aspects of the
alleged infringement addressed by the commitments, except under limited
circumstances.103
10.27 However, the CMA is not prevented from taking any action in relation to
competition concerns that are not addressed by the commitments it has
accepted.
10.28 Where the CMA has accepted commitments it may, for the purposes of
addressing its current competition concerns, accept a variation of the
commitments or commitments in substitution for them.104 If the CMA’s
current competition concerns are different from the competition concerns it
identified when the commitments were accepted, when considering the
appropriateness of accepting varied or substitute commitments, the CMA will
take into account the considerations in paragraphs 10.17 to 10.20, above.
10.29 The CMA may consider it appropriate to release commitments where:105
• It is requested to do so by the person(s) who gave the commitments.
In such cases, the CMA will generally consider it appropriate to
release commitments only where it has reasonable grounds for
believing that the competition concerns identified by it at the time, or
their acceptance or variation, no longer arise; or
• The competition concerns identified at the time of their acceptance or
variation no longer arise.
103 These are listed in section 31B(4) of the CA98. 104 See section 31(A)(3) of the CA98. The procedure in paragraphs 10.21 to 10.25 will also apply to any variation
of commitments. Also, the procedural requirements for the acceptance or variation of commitments are set
out in part 1 of Schedule 6A to the CA98. 105 Pursuant to Section 31A(4)(b) of the CA98. Procedural requirements for the release of commitments are set
out in part 2 of Schedule 6A to the CA98.
49
Issuing a Statement of Objections
10.30 The CMA will issue a Statement of Objections where its provisional view is
that the conduct under investigation amounts to an infringement. See
Chapter 11 for more detail on this.
50
11 Issuing the CMA’s provisional findings – the Statement of
Objections
11.1 Following the analysis of the evidence on the files, if the CMA’s provisional
view is that the conduct under investigation amounts to an infringement, the
CMA will issue a Statement of Objections to each business it considers to be
responsible for the infringement and give them an opportunity to inspect the
CMA’s file.106
11.2 If the case involves more than one party, each party will receive a copy of
the Statement of Objections. Information that is confidential will be disclosed
through the Statement of Objections to other parties only if disclosure is
strictly necessary in order for them to exercise their rights of defence. Before
disclosing any confidential information, the CMA will consider whether there
is a need to exclude any information whose disclosure would be contrary to
the public interest or whose disclosure might significantly harm the interests
of the company or individual it relates to. If the CMA considers that
disclosure might significantly harm legitimate business interests or the
interests of an individual, the CMA will consider the extent to which
disclosure of that information is nevertheless necessary for the purpose for
which the CMA is allowed to make the disclosure.107
11.3 Where the CMA considers that an agreement or conduct infringes the
Chapter I prohibition or the prohibition in Article 101(1) TFEU the CMA may
use its discretion to address the Statement of Objections to fewer than all the
persons who are, or were, a party to that agreement or conduct.108 The CMA
will notify any party who is not an addressee under Rule 5(3) that a
Statement of Objections has been issued and will provide a non-confidential
version of the Statement of Objections, following a request by such a party,
where it is deemed that it is necessary for them to review it to protect their
rights of defence. The CMA will only provide access to documents on its file
where it is established that access is required in order for such a party to
make representations on the Statement of Objections.
11.4 At this stage, the CMA may also invite addressees of a Statement of
Objections to contact the CMA if they would like to enter into discussions on
the possible settlement of the case. This settlement procedure applies where
a business under investigation is prepared to admit that it has breached
106 Rule 6 of the CA98 Rules. Rules 18 and 19 set out the process for notification by the CMA of a Statement of
Objections to each business it considers to be responsible for the infringement. 107 Section 244 of the EA02.
108 Rule 5(3) of the CA98 Rules.
51
competition law and confirms that it accepts that a streamlined administrative
procedure will govern the remainder of the investigation of that business’s
conduct. If so, the CMA will impose a reduced penalty on the business.
11.5 Businesses may wish to approach the CMA earlier on in the investigation to
discuss the possibility of exploring settlement. If so, they should contact the
case team in the first instance. See Chapter 14 for more information on
settlement.
11.6 The Statement of Objections represents the CMA’s provisional view and
proposed next steps. It allows the businesses being accused of breaching
competition law an opportunity to know the full case against them and, if they
choose to do so, to respond formally in writing and orally.
11.7 The Statement of Objections will set out the facts and the CMA’s legal and
economic assessment of them which led to the provisional view that an
infringement has occurred. The CMA will also set out any action it proposes
to take, such as imposing financial penalties109 and/or issuing directions to
stop the infringement if the CMA believes it is ongoing, as well as the CMA’s
reasons for taking that action.
11.8 The CMA will generally send the Statement of Objections and covering letter
to recipients by secure email in PDF format.
11.9 It is the CMA’s normal practice to publicly announce the issue of the
Statement of Objections on its webpages and to make an announcement to
the media, and on the Regulatory News Service where the matter is judged
market sensitive.110 The CMA will also update the administrative timetable
on the case page.
11.10 The timing of the announcement and any advance notice will depend on
whether there is any market sensitivity in respect of the announcement. The
CMA has to balance its responsibilities concerning the control and release of
market sensitive information against the objective of, as far as possible,
giving directly affected parties fair and sufficient notice.
11.11 In both market-sensitive and non-market sensitive situations, the CMA will
aim to balance an open approach with the need to ensure the orderly
disclosure of information. Generally, in non-market sensitive
announcements, the CMA aims to give parties advance notice of its
109 More information on how the CMA sets penalties is available inthe CMA’s Guidance as to the appropriate
amount of a penalty (CMA73).
110 See London Stock Exchange.
52
announcement, in confidence, unless there is a compelling reason not to do
so. In such situations, it may also give advance indication on its website
about the expected date, but not contents, of the announcement.
11.12 In the case of market sensitive announcements, where appropriate, the CMA
will apply the Guideline for the control and release of price sensitive
information by Industry Regulators (originally published by the Financial
Services Authority, the predecessor of the Financial Conduct Authority).111
11.13 If the date and content of the announcement is market-sensitive (for
example, where nothing about the investigation has previously been
announced), the CMA will not publicise the expected date on its webpages.
It will notify directly affected parties in strict confidence the evening before
the announcement is to be made, once relevant financial markets have
closed (including, where appropriate, financial markets in other countries).
11.14 More details about the way in which the CMA publicly announces the issue
of a Statement of Objections is available in the CMA’s guideline
Transparency and Disclosure: Statement of the CMA’s policy and approach
(CMA6).
Who decides whether to issue a Statement of Objections?
11.15 The SRO decides whether to issue a Statement of Objections. Before doing
so, the SRO will consult the General Counsel and the Chief Economic
Adviser (or their representatives) to ensure that the SRO is aware of any
significant legal and economic risks that have been identified.112 The SRO
will also consult other senior CMA officials as appropriate.
Inspection of the file and treatment of confidential information
11.16 At generally the same time as issuing the Statement of Objections, the CMA
will also give the addressees of the Statement of Objections the opportunity
to inspect the file. This is to ensure that they can properly defend themselves
against the allegation of having breached competition law.
111 See the FCA website. 112 As described further in paragraph 9.4 above.
53
11.17 The CMA’s file contains documents that relate to matters contained in the
Statement of Objections, excluding certain confidential information113 and
CMA internal documents.114
11.18 Prior to issuing the Statement of Objections, the CMA will discuss with the
businesses under investigation the process envisaged for giving access to
the CMA’s file. This may be discussed as part of a State of Play meeting115
and/or in writing.
11.19 The CMA allows addressees of the Statement of Objections a reasonable
opportunity to inspect the CMA’s file. The time given for addressees will take
into consideration a number of factors including the size of the file, the
nature of the documents and the access to file process being used. The
CMA considers that, in general, the period of time for inspecting the file will
generally be the same as that given for the provision of written
representations.116
11.20 In order to ensure that the access to file process is as efficient as
practicable, both for addressees of the Statement of Objections and the
CMA, the CMA will typically provide:
a) copies of the documents that are directly referred to in the Statement
of Objections; and
b) a schedule containing a detailed list of all the documents on the
CMA’s file.
These will usually be given in electronic form by secure email.117
11.21 Businesses will have a reasonable opportunity to inspect additional
documents listed in the schedule upon request. The CMA will set a
reasonable deadline within which the business will be able to make any such
requests, on a case-by-case basis. As noted at paragraph 11.18 above, this
process will have been discussed with the businesses under investigation in
113 Under Rule 1(1) of the CA98 Rules, confidential information means commercial information whose disclosure
the CMA thinks might significantly harm the legitimate business interests of the undertaking to which it
relates, or information relating to the private affairs of an individual whose disclosure the CMA thinks might
significantly harm the individual's interests, or information whose disclosure the CMA thinks is contrary to the
public interest.
114 Rule 6(2) of the CA98 Rules. 115 See paragraphs 9.9 to 9.11 above. 116 See paragraph 12.2 below. 117 Where a business does not have the relevant electronic means to view the documents in this way the CMA
will send hard copies.
54
advance of the Statement of Objections being issued. Where a business
requests additional documents, the CMA may consider the use of a
confidentiality ring and/or data room to facilitate disclosure. This process
would generally only be done with the consent of the relevant parties.
Other processes for inspecting the file / Confidentiality rings and data rooms
11.22 The CMA will also consider requests from addressees for access to the file
by other methods, for example, by using confidentiality rings or data rooms.
Such requests will be considered on a case-by-case basis.
11.23 The CMA has discretion as to whether or not to use these processes in
investigations under the CA98 and is likely to do so only where it is
proportionate, there are clearly identifiable benefits in doing so and where
any potential legal and practical difficulties can be resolved swiftly in
agreement with the parties concerned. The CMA will also take into account
whether it is appropriate to provide access at the time the request is made,
having regard to the progress of the case, the resource implications of
operating confidentiality rings and data rooms, and the risks of inadvertent
disclosure through human error and information leaks.
11.24 Confidentiality rings enable disclosure of specific quantitative and/or
qualitative data or documents to a defined group.118 The group is determined
on a case-by-case basis but, generally, disclosure is made to the relevant
parties’ external (legal and/or economic) advisers.
11.25 Data rooms enable access to a specific category of confidential data or
documents to a defined group. The group is also determined on a case-by-
case basis. A data room provides access to the confidential data or
documents on the CMA premises, and in so doing has the advantage of
providing additional protection.
11.26 The CMA will generally use confidentiality rings rather than data rooms in
CA98 investigations. Additional enhanced security measures may, however,
be taken where information is considered by the CMA to be particularly
sensitive.
11.27 The CMA would envisage that a confidentiality ring or data room may be
appropriate where the disclosure of a specific category of confidential
information or data would enable a defined group to further their
understanding or prepare confidential submissions on behalf of their client
118 Subject to any restrictions in the DPA 2018 in relation to personal information.
55
regarding the CMA’s analysis. This procedure is typically used for the
disclosure of (confidential) quantitative data and may, where appropriate, be
used to allow parties’ legal advisers to carry out an assessment of a specific
set of qualitative documents.
11.28 The CMA envisages that the confidentiality ring or data room processes
would be used in these circumstances where it is necessary to make the
disclosure for the purpose of facilitating the CMA’s functions by ensuring due
process.119
11.29 Where the CMA decides on (or a party requests) the use of a confidentiality
ring or data room process, the CMA will provide the relevant parties with
details of how the CMA proposes this will work in practice. For example,
providing copies of the proposed data room rules and the confidentiality
undertakings120 that will be required from those who are given access to the
data room or confidentiality ring.121 It will be a condition of access to a
confidentiality ring or data room that information reviewed by advisers is not
shared with their client(s). If any party has a concern about the potential use
of a confidentiality ring or data room procedure, they should raise their
concerns first with the SRO and, if it is not possible to resolve the issue, with
the Procedural Officer.122
11.30 It is a criminal offence, punishable by fine and/or imprisonment, for any
person to whom information is disclosed by way of a confidentiality ring or
data room to disclose or otherwise use the information other than for the
purpose of facilitating the exercise of any of the CMA’s functions under the
CA98 or any other enactment.123 In practical terms, this means that a person
to whom information is disclosed which has not been made publicly available
must not make any onward disclosure of that information.
119 The CMA will seek consent from the relevant parties to the disclosure and use of confidential information
within a data room or confidentiality ring procedure in all cases. However, the CMA has the discretion to
decide that a confidentiality ring or data room procedure is a necessary way of disclosing information for the
purpose of facilitating its functions, even if a relevant party does not provide consent. 120 See Confidentiality ring and disclosure room undertaking templates. 121 See Chapter 4 of the CMA’s guideline Transparency and Disclosure: Statement of the CMA’s policy and
approach (CMA6) for further information on the CMA’s general approach to the protection of confidential
information disclosed through a confidentiality ring or data room.
122 See Chapter 15 and Rule 8 of the CA98 Rules. See Procedural Officer: raising procedural issues in CMA
cases, for further details.
123 Section 241(2A) and section 245 of the EA02.
56
Appointment of a Case Decision Group
11.31 Once the CMA has issued a Statement of Objections, a three-member Case
Decision Group is appointed by the Case and Policy Committee to be the
decision-makers in the case.124 The Case Decision Group is responsible for
taking decisions on (a) whether to issue an infringement decision (with or
without directions) or a 'no grounds for action' decision; and (b) on the
appropriate amount of any penalty.125 The CMA will inform the parties of the
identity of the Case Decision Group members. At least one member of the
Case Decision Group will be legally qualified.
11.32 The SRO will not be a member of the Case Decision Group, to ensure that
the final decision is taken by officials who were not involved in the decision
to issue the Statement of Objections.
11.33 The case team, including the SRO, will remain in place to progress the
investigation under the direction of the Case Decision Group as appropriate.
The case team will remain the primary point of contact for the parties.126
124 The Case Decision Group, generally comprising of members of the CMA’s senior staff and, where appropriate
the CMA panel, will operate under the delegated authority of the Case and Policy Committee. 125 The Case Decision Group may also decide to close a case on the grounds of administrative priorities. See
further paragraphs 10.2 – 10.12 above.
126 Contact details for the case team will be included in the notice of investigation published on the CMA’s
webpages: www.gov.uk/cma.
57
12 Right to reply
Written representations – the response to the Statement of Objections
12.1 When the CMA issues a Statement of Objections, the CMA will invite each
addressee of the Statement of Objections (Addressee) to respond in writing,
commenting on the matters referred to in the Statement of Objections.127
However, there is no obligation to submit a response. Where the CMA has
provided a non-confidential version of the Statement of Objections to a
person who is party to an agreement or conduct that the CMA considers
infringes the Chapter I prohibition or the prohibition in Article 101(1) TFEU
but who is not an addressee of the Statement of Objections,128 the CMA will
allow that person to make representations on the matters referred to in the
non-confidential version of the Statement of Objections.
12.2 The deadline for submitting written representations will be specified in the
Statement of Objections and will be set on a case-by-case basis having
regard to the circumstances of each particular case. Such circumstances
may include the volume of documentary evidence relied upon in the
Statement of Objections and the particular situation of the Addressee
themselves. The deadline for an Addressee to submit written representations
will be no more than 12 weeks, from the issue of the Statement of
Objections. Any requests for an extension to the deadline should be
communicated to the CMA as soon as possible, and in any event within five
working days, following the receipt of the Statement of Objections and must
specify the reasons why an extension is required.
12.3 Where an Addressee has a complaint about the deadline set for submitting
written representations, the Addressee should raise this as soon as possible
with the SRO. If it is not possible to resolve the dispute with the SRO, the
Addressee may refer the matter to the Procedural Officer.129
12.4 When an Addressee submits written representations it should also provide a
non-confidential version of its representations, along with an explanation
which justifies why information should be treated as confidential. The CMA
will not accept blanket or unsubstantiated confidentiality claims. The non-
confidential version should be provided within two weeks of the date of
127 Rule 6 of the CA98 Rules. 128 See Rule 5(3) of the CA98 Rules and paragraph 11.3 above. 129 See Chapter 15 and Rule 8 of the CA98 Rules. See Procedural Officer: raising procedural issues in CMA
cases, for further details.
58
submitting the original response. Any extension to this deadline should be
agreed in advance of the deadline with the case team.
12.5 Where there are multiple Addressees the CMA will not cross disclose the
written (or oral) representations made by an Addressee to each of the other
Addressees, other than in exceptional circumstances.130
12.6 The CMA may also provide an opportunity to submit written representations
on a non-confidential version of the Statement of Objections to third parties
who are:
• a complainant whose complaint has led to the relevant investigation
and whose interests are, in the CMA’s view, directly and materially
affected by the outcome of the CMA’s investigation;131 and
• third parties or complainants who in the CMA’s view:
o are directly and materially affected by the outcome of the CMA’s
investigation but have not made a complaint to the CMA about
agreement or conduct under investigation;
o are likely materially to assist the CMA in its investigation; and
o have requested the opportunity to comment on the Statement of
Objections.
12.7 The CMA is only likely to regard a third party as being able materially to
assist it in its investigation where it considers that third party’s comments are
likely to be material over and above, and that are not otherwise duplicative
of, views and information that the CMA has already taken into consideration
in preparing the Statement of Objections.
12.8 The CMA will not provide complainants or third parties with an opportunity to
comment, or may only consult them to a more limited extent, in this way
where doing so risks prejudicing the CMA’s investigation or another case.132
12.9 In most cases, disclosure of a non-confidential version of the Statement of
Objections will be sufficient to enable third parties to provide the CMA with
130 For instance, where the CMA considers it necessary for rights of defence of the other Addresses or where it
assists the CMA in clarifying a substantive factual or legal or economic issue. 131 See paragraph 10.4 for examples of when a complainant is likely to be regarded as being “directly and
materially affected by the outcome of the CMA’s investigation”. 132 For example, a related criminal investigation or an investigation by another agency.
59
informed comments and this will not generally include any annexed
documents. The document is for the relevant complainant or third party's use
only in making representations to the CMA and must not be disclosed to
others. The deadline for a complainant or third party to submit written
representations (along with a non-confidential version) will be set on a case-
by-case basis.
12.10 The non-confidential version of the written representations that have been
submitted by a relevant complainant or third party will be disclosed to
Addressee(s) to allow them an opportunity to comment. The CMA will not
generally allow complainants and other third parties an opportunity to
comment on the Addressees’ written representations, although this may be
appropriate in certain circumstances.133
Oral representations – the oral hearing
12.11 The CMA will offer all Addressees of a Statement of Objections the
opportunity to attend an oral hearing to discuss the matters set out in that
Statement of Objections.134
12.12 The CMA encourages Addressees to take up the opportunity to attend an
oral hearing and Addressees should make clear before or when submitting
their written representations that they would like to do so. The Addressee
can bring legal or other advisers to the oral hearing to assist in presenting its
oral representations at the hearing, subject to any reasonable limits that the
CMA may set in terms of the number of persons that may attend on behalf of
the Addressee. Complainants and third parties will generally not be
permitted to attend the Addressee's oral hearing.135
12.13 The oral hearing will be held after the deadline for the submission of the
written representations on the Statement of Objections, allowing time for the
Case Decision Group to consider the representations. The hearing will be
attended by the Case Decision Group, members of the case team, the Chief
Economic Adviser and the General Counsel (or their representatives).
Where necessary the CMA may arrange for attendees, from the Addressee
and/or the CMA, to join the oral hearing via video conferencing. The hearing
will be chaired by the Procedural Officer.
133 For example, when the Addressee and a third party put forward different versions or interpretations of the
same facts and it is necessary to decide which version or interpretation is more credible.
134 Rule 6 of the CA98 Rules.
135 In some cases, the CMA may decide that it is appropriate to hold a multi-party hearing, including
complainants and/or other third parties. See paragraph 12.22 below.
60
12.14 To promote a focussed and productive meeting, the case team will ask the
Addressee to give an indication, in advance, of the matters it proposes to
focus on in its oral representations at the hearing. The Addressee and the
case team will agree an agenda in advance of the hearing, taking into
account any matters which the Case Decision Group has indicated to the
case team that it wishes to cover at the oral hearing. The agenda for the
hearing will include reasonable periods of time for the Addressee to make
oral representations and for the CMA staff present to ask the Addressee
questions on its representations.136
12.15 In the event that an agenda and associated timings are not agreed between
the Addressee and the case team at least three working days prior to the
hearing, the agenda will be determined by the Procedural Officer.
12.16 The oral hearing provides the Addressee with an opportunity to highlight
directly to the Case Decision Group issues of particular importance to its
case, and which have been set out in its written representations. The oral
hearing may also provide a useful opportunity for the Addressee to clarify the
detail set out in its written representations. As a general rule, any points
raised orally by the Addressee at this stage should be limited to those
already submitted to the CMA in writing.
12.17 During the oral hearing, the Case Decision Group and other members of
CMA staff present may ask questions on the Addressees’ written
representations or questions of clarification. It will be helpful for the CMA,
and is likely to assist the progress of the investigation, if Addressees provide
full responses to these questions. However, there is no obligation to answer.
It is possible to respond to questions in writing after the hearing.
12.18 Where an Addressee indicates that it will respond to questions in writing
post-hearing, the case team will set out these questions in writing and
provide a deadline for response which is appropriate in the circumstances of
the case.
12.19 A transcript of the oral hearing will be taken and the Addressee will be asked
to confirm the accuracy of the transcript and, if necessary, to identify any
confidential information. The CMA will not accept blanket or unsubstantiated
confidentiality claims.
136 See paragraph 12.17.
61
12.20 Following the oral hearing, the Procedural Officer will report to the Case
Decision Group on the fairness of the procedure followed in the
investigation.137
12.21 If a Case Decision Group member changes after the oral hearing(s) but
before the CMA issues a final decision, the new member will, as well as
considering parties’ written representations, review the transcript of the oral
hearing(s).
12.22 The CMA will consider multi-party oral hearings on specific issues in
appropriate cases, such as where there are differing views on a key issue
like market definition, or differing interpretations offered in respect of a key
piece of evidence.
Considering representations
12.23 The case team, the Case Decision Group, and other CMA officials including
legal and economic advisers, will carefully and objectively consider all written
and oral representations to appraise the case as set out in the Statement of
Objections and to assess whether the provisional findings in the Statement
of Objections are supported by the evidence and the facts.
12.24 An original set of all written representations and the transcript(s) from the
oral hearing will be placed on the case file.
Letter of facts
12.25 Where the CMA acquires new evidence at this stage which supports the
objection(s) contained in the Statement of Objections and the Case Decision
Group is considering relying upon it to establish that an infringement has
been committed, the CMA will put that evidence to the Addressee138 in
writing and give it an opportunity to respond to the new evidence.139 The
time frame for responding will be set according to the volume and complexity
of the new evidence.
Supplementary Statement of Objections
12.26 If new information received by the CMA in response to the Statement of
Objections indicates that there is evidence of a different suspected
137 Rule 6(6) and (7) of the CA98 Rules. 138 Rule 5(3) parties will be notified that a letter of facts has been issued and may be provided with a non-
confidential copy where they have established that it is necessary for their rights of defence. 139 The CMA may issue multiple letters of facts.
62
infringement or there is a material change in the nature of the infringement
described in the Statement of Objections,140 the CMA will issue a
Supplementary Statement of Objections. This will set out the new facts or
changes in the nature of the infringement on which the CMA proposes to rely
to establish an infringement. The Case Decision Group will be responsible
for deciding whether to issue a Supplementary Statement of Objections,
having consulted the case team and other CMA officials as appropriate.
12.27 The CMA will give the Addressee an opportunity to make representations on
the Supplementary Statement of Objections. The CMA will set the time
frame for responding after taking into account the extent of the difference in
the objections raised in the first Statement of Objections compared with the
Supplementary Statement of Objections and allow the Addressees an
opportunity to inspect new documents on the file.141 The process will be the
same as that set out in Chapter 11.
12.28 If it appears unlikely, when issuing a Supplementary Statement of
Objections, that engaging with complainants or third parties who had
previously been provided with an opportunity to comment on the Statement
of Objections will materially assist the investigation, the CMA may decide to
consult them on a more limited basis, or not at all. This may be the case, for
example, where the Supplementary Statement of Objections is very narrow
in scope.
Draft Penalty Statement – written and oral representations
12.29 Where, once any written and oral representations made on the Statement of
Objections have been considered, the Case Decision Group is considering
reaching an infringement decision and imposing a financial penalty on a
party, the CMA will provide that party with a draft penalty statement.142
Depending on the written and oral representations received, this may be
quite shortly after the oral hearing.
140 A Supplementary Statement of Objections will not be issued where, for example, the scope of an suspected
infringement has reduced. 141 Rule 5(3) parties will be notified that a Supplementary Statement of Objections has been issued and may be
provided with a non-confidential copy where they have established that it is necessary for their rights of
defence. 142 Rule 11 of the CA98 Rules.
63
12.30 The draft penalty statement will set out the key aspects143 relevant to the
calculation of the penalty that the CMA proposes to impose on that party,
based on the information available to the CMA at the time.144 It will also
include a brief explanation of the Case Decision Group’s reasoning for its
provisional findings on each aspect of the penalty calculation.
12.31 Parties will be offered the opportunity to comment on the draft penalty
statement in writing and via an oral hearing (by telephone or video
conference).145 The oral hearing will be chaired by the Procedural Officer
and attended by the Chair of the Case Decision Group, members of the case
team and representatives of the General Counsel and the Chief Economic
Adviser. Any member of the Case Decision Group not in attendance, will be
provided with the transcript of the hearing. If a party chooses to make written
or oral representations, these should relate only to the draft penalty
calculation in the draft penalty statement. The Case Decision Group will not
consider further representations at this stage on whether an infringement
has been committed, other than in exceptional cases such as where the
party is able to demonstrate that it was unable to provide the
information/evidence before the issue of the draft penalty statement. The
written and oral representations process following issue of the Statement of
Objections, described in paragraphs 12.1 – 12.22 above, represents parties’
opportunity to make submissions to the Case Decision Group on whether an
infringement has been committed.
12.32 The deadline for submitting written representations on the draft penalty
calculation will be specified in the draft penalty statement. The deadline will
be set having regard to the circumstances of the case and will allow for the
opportunity to inspect any new relevant documents on the file.146 Any
requests for an extension to the deadline must specify the reasons for such
a request.
12.33 Where a party has a complaint about the deadline set for submitting written
representations on the draft penalty statement, the party should raise this as
143 Including, for example, the starting point percentage, the relevant turnover figure to be used, the duration of
the infringement, any uplift for specific deterrence, any aggravating/mitigating factors (and the proposed
increase/decrease in the penalty for these), and any adjustment proposed for proportionality.
144 Rule 11 of the CA98 Rules. For further information on how the CMA calculates a penalty, see CMA’s
Guidance as to the appropriate amount of a penalty (CMA73).
145 Rule 6 of the CA98 Rules.
146 Including, in cases in which the CMA issues draft penalty statements to several parties, non-confidential
versions of the draft penalty statement issued to each of those parties (see paragraph 12.36 below).
64
soon as possible with the SRO. If it is not possible to resolve the dispute with
the SRO, the party may refer the matter to the Procedural Officer.147
12.34 When a recipient of a draft penalty statement submits written representations
on that draft penalty statement, it should also provide a non-confidential
version of its representations, along with an explanation which justifies why
an item of information should be treated as confidential. The CMA will not
accept blanket or unsubstantiated confidentiality claims. The non-confidential
version should be provided at the same time as the original response and in
any event no later than two weeks from the date of submitting the original
response. Any extension to this deadline should be agreed in advance with
the case team.
12.35 As set out above, the CMA will offer a party the opportunity to attend an oral
hearing in relation to the draft penalty statement.148 The hearing, if
requested, will be conducted (by telephone or video conference) after the
deadline for the submission of the written representations on the draft
penalty statement, allowing time for the Case Decision Group to consider
such representations.
12.36 Where draft penalty statements are issued to more than one party under
investigation, the CMA will – in order to provide parties with transparency as
to the CMA’s application of the principle of equal treatment in the CMA’s
draft calculations149 – place a non-confidential version of each party’s draft
penalty statement on the file. Each non-confidential version will generally be
disclosed to the other parties under investigation.150
147 See Chapter 15 and Rule 8 of the CA98 Rules. Further details of the Procedural Officer role are available at:
www.gov.uk/cma.
148 Rule 6 of the CA98 Rules.
149 See CMA’s Guidance as to the appropriate amount of a penalty (CMA73), at footnote 16.
150 The case team will prepare non-confidential versions of each party’s draft penalty statement, based on any
confidentiality representations previously made by that party in relation to the information included in the draft
penalty statement. Where the draft penalty statement contains information regarding a party, which that party
has not had a previous opportunity to assess for confidentiality, the CMA will allow it a reasonable opportunity
to make such an assessment and to make any confidentiality claims to the CMA before the non-confidential
version of the draft penalty statement is placed on the file.
65
13 The final decision
13.1 The Case Decision Group decides whether there is sufficient evidence to
meet the legal test for establishing an infringement and, if so, the level of any
financial penalty to be imposed. Prior to proceeding to issue a final decision,
the Case Decision Group may consult the Case and Policy Committee on
any legal, economic or policy issues arising out of the proposed decision.151
13.2 As noted in Chapter 10, if, having completed its consideration of the case,
the Case Decision Group does not find sufficient evidence of a competition
law infringement, it will close the case.152 In those circumstances, the Case
Decision Group may decide to publish a reasoned no grounds for action
decision.
Issue of an infringement decision
13.3 The CMA will issue an infringement decision to each business the CMA has
found to have infringed the law.153 The CMA will also provide a non-
confidential version of the decision to any person who is party to an
agreement or conduct that the CMA considers infringes the Chapter I
prohibition or the prohibition in Article 101(1) TFEU but who was not an
addressee of the Statement of Objections.154
13.4 The infringement decision will set out fully the facts on which the CMA relies
to prove the infringement and the action that it is taking, and will address any
material representations that have been made during the course of the
investigation.
Imposition of financial penalties
13.5 If a financial penalty is being imposed, the infringement decision will explain
how the Case Decision Group decided upon the appropriate level of penalty,
having taken into account the CMA’s statutory obligations155 and the parties’
written and oral representations on the draft penalty statement. More
information on how the CMA sets penalties is available in the CMA’s
Guidance as to the appropriate amount of a penalty (CMA73).
151 As described in paragraph 9.7 above. 152 The Case Decision Group may consult the Case and Policy Committee as necessary. 153 Section 31 of the CA98 and Rule 10(1) of the CA98 Rules. 154 Rule 10(2) and Rule 19 of the CA98 Rules. 155 Section 36(7A) of the CA98.
66
13.6 The infringement decision will also specify the date before which the penalty
must be paid. It is likely that payment will be required within a period of three
months from the date of the infringement decision. If the business fails to pay
within the date specified (and has not brought an appeal against the
imposition or amount of the penalty within the time allowed or an appeal has
been heard and the penalty upheld), the CMA may commence proceedings
to recover the required amount as a civil debt.
Issuing of directions
13.7 The infringement decision may also give directions to bring the infringement
to an end.156 Directions may require the individual or business to modify or
cease the conduct or agreement. This may include positive action, such as
informing third parties that an infringement has been brought to an end. In
some circumstances, the directions appropriate to bring an infringement to
an end may be (or include) structural changes to its business.
13.8 Any directions will set out the facts on which the direction is based and the
reasons for it.157 In most cases directions will have immediate effect,
although in some cases the CMA may allow a period of time for
compliance.158 The directions will be published on the public register
maintained by the CMA.
Announcement of the infringement decision
13.9 When an infringement decision is issued, the CMA will normally issue a
press announcement, make an announcement on the Regulatory News
Service and publish a page on the CMA’s webpages which describes the
case.
13.10 As a general rule, as described in Chapter 11, in non-market-sensitive
announcements, the CMA aims to give parties advance notice of the
announcement, in confidence, unless there is a compelling reason not to do
so. In both market-sensitive and non-market sensitive situations, the CMA
will aim to balance an open approach with the need to ensure the orderly
announcement of full information.159
156 Section 32 and 33 of the CA98.
157 Rule 12 of the CA98 Rules. 158 The CMA may apply to the court for an order requiring compliance with a direction within a specified time limit
if a person fails to comply with it without reasonable excuse, section 34 of the CA98. 159 For a general guide to the CMA’s approach when it makes a public announcement, see Transparency and
Disclosure: Statement of the CMA’s policy and approach (CMA6).
67
13.11 After the infringement decision and press announcement have been issued,
the CMA may notify complainants whose complaint led to the investigation
and other third parties (for example, third parties who have submitted written
representations during the investigation) of the CMA’s decision.
Confidentiality
13.12 Information that is confidential will be disclosed through the infringement
decision to other parties only if disclosure is strictly necessary. Before
disclosing any confidential information, the CMA will consider whether there
is a need to exclude any information whose disclosure would be contrary to
the public interest or whose disclosure might significantly harm the interests
of the company or individual it relates to. If the CMA considers that
disclosure might significantly harm legitimate business interests or the
interests of an individual, the CMA will consider the extent to which
disclosure of that information is nevertheless necessary for the purpose for
which the CMA is allowed to make the disclosure.160
13.13 The Addressee of the decision will have already had the opportunity to make
confidentiality representations. Either shortly before or after the infringement
decision has been issued, prior to publication of a non-confidential version,
the CMA will usually allow the Addressee a final opportunity to make
representations on information which the Addressee deems to be
confidential and is contained in the decision. Any representations must be
limited to confidentiality issues only and, as at the other stages in the
process, the CMA will not accept blanket or unsubstantiated confidentiality
claims.
Final publication
13.14 The CMA will publish, as quickly as possible, a non-confidential version of
the infringement decision on the case page on the CMA’s webpages. The
CMA also maintains a register of decisions in investigations under the CA98
and the details of the case will be placed on the register.
13.15 The CMA may delay publication of the final decision to avoid prejudicing any
criminal investigation under section 192 of the EA02 that relates to the same
or similar arrangements or conduct.
160 Section 244 of the EA02.
68
14 Settlement
14.1 In the context of enforcement cases under the CA98, ‘settlement’ is the
process whereby a business under investigation is prepared to admit that it
has breached competition law and confirms that it accepts that a streamlined
administrative procedure will govern the remainder of the CMA’s
investigation. If so, the CMA will impose a reduced penalty on the
business.161
14.2 Settlement, in appropriate cases, allows the CMA to achieve efficiencies
through a streamlined administrative procedure, resulting in earlier adoption
of any infringement decision, and/or resource savings.
14.3 It is distinct from the CMA’s leniency policy and the CMA’s power to accept
commitments under section 31A of the CA98.162 The leniency policy and the
use of settlements are not mutually exclusive – it is possible for a leniency
applicant to settle a case under the CA98 and benefit from both leniency and
settlement discounts.
Discretionary nature of settlement
14.4 The CMA will consider settlement for any case falling under the Chapter I or
Chapter II prohibitions under the CA98 (or Article 101(1) or 102 of the TFEU)
as long as the CMA considers that the evidential standard for giving notice of
its proposed infringement decision is met.
14.5 Whether to settle any case is at the CMA’s discretion. Moreover, there is no
right or obligation to settle or enter into any settlement discussions where
these are offered by the CMA.
14.6 In determining whether a case is suitable for settlement the CMA will have
regard to a number of factors. The primary factor is whether the CMA
considers that the evidential standard for giving notice of its proposed
infringement decision is met. The CMA will not proceed with settlement
discussions unless it considers that this standard is met. The CMA will also
consider other factors such as the likely procedural efficiencies and resource
savings that can be achieved. A further factor that may be relevant is the
prospect of reaching settlement in a reasonable time frame. The CMA will
161 See Rule 9 of the CA98 Rules. See also paragraph 2.1 and 2.30 of the CMA’s Guidance as to the appropriate
amount of a penalty (CMA73), which provides that the CMA will reduce penalties where a business settles.
162 See, respectively, the CMA guideline Applications for leniency and no action in cartel cases (OFT1495) and
paragraphs 10.15 to 10.29 above.
69
continue to consider throughout the settlement discussions whether
procedural efficiencies and resource savings can still be achieved from
settlement, for example, taking into account the number of businesses who
are interested in settlement out of the total number involved in the
investigation.
Requirements for settlement
14.7 At a minimum, the CMA will require the settling business/es to:
• make a clear and unequivocal admission of liability in relation to the
nature, scope and duration of the infringement. The scope of the
infringement will include, as a minimum, the material facts of the
infringement as well as its legal characterisation. An admission of the
facts alone is not sufficient to constitute an admission of liability sufficient
to form the basis of a settlement. Where appropriate the admission will
also include the facts of any actual implementation of the infringement;
• cease the infringing behaviour immediately from the date that it enters
into settlement discussions with the CMA, where it has not already done
so. It must also refrain from engaging again in the same or similar
infringing behaviour; and
• confirm it will pay a penalty set at a maximum amount.163 As set out in
paragraph 14.28 below, this maximum penalty – which will apply
provided the business continues to follow the requirements of settlement
– will reflect the application of the settlement discount to the penalty that
would otherwise have been imposed. The level of settlement discount
applied will reflect the particular circumstances of the case, in particular
whether the case is being settled pre- or post- Statement of Objections
(see paragraph 14.30 below).
14.8 In addition, in order to achieve the CMA’s objective of resolving the case
efficiently, settling businesses must confirm that they accept that:
• there will be a streamlined administrative process for the remainder of
the investigation. This would normally include streamlined access to file
arrangements, no written representations on the Statement of
Objections or any Supplementary Statement of Objections (except in
163 There may be rare cases where the CMA may settle where a penalty is not being imposed on a party, for
example an immunity applicant. However, the CMA would not normally invite an immunity applicant to explore
the possibility of settlement (see paragraph 14.11 below).
70
relation to manifest factual inaccuracies), no oral hearings, no separate
draft penalty statement after settlement has been reached164 and no
Case Decision Group being appointed;165
• there will be an infringement decision against the settling business
(except in the circumstances set out in paragraph 14.26);
• unless the settling party itself successfully appeals the infringement
decision, the decision will remain final and binding as against it, even if
another addressee of the infringement decision successfully appeals it;
• if the settling business appeals, the decision it will no longer benefit
from the settlement discount (see further paragraph 14.29 below). The
CMA will remain free to use the admissions made by the settling
business and any documents, information or witness evidence
provided by the settling business; and
• there are likely to be specific requirements that relate to the
circumstances of the case and the stage which it has reached. For
example, the settling business may be required to make some of its
employees or officers available for interview and to provide additional
witness statements where the circumstances of a case demand it. The
settling business is likely also to be required to confirm that it will use
its best endeavours to ensure that employees or officers (who may
have provided witness statements during the investigation) appear as
witnesses on behalf of the CMA’s case, should another addressee of
the eventual infringement decision appeal any infringement decision to
the Competition Appeal Tribunal.
Businesses settle voluntarily
14.9 A settling business may withdraw from settlement discussions at any time
before confirming in writing166 its acceptance of the requirements for
settlement (including its admission). The settling business’ decision to settle
should be based on its full awareness of the requirements of settlement and
164 The process for providing a separate draft penalty statement where there is no settlement and the Case
Decision Group is minded to reach an infringement decision and impose a financial penalty on a party is
described at paragraphs 12.29 to 12.36.
165 Following settlement the SRO would generally remain the decision-maker on the case. The SRO would
consult the Case and Policy Committee on his/her proposed decision. 166 Although, as set out in paragraph 14.18, it may be possible for a business to confirm its acceptance orally.
71
the consequences of settling. The settling business should satisfy itself, and
will be taken to have satisfied itself, as to the following:
• that, having seen the key evidence on which the CMA is relying, it is
prepared to admit to the infringement by reference to the Summary
Statement of Facts167 or draft Statement of Objections or Statement of
Objections (where the settlement occurs after issue of the Statement of
Objections), including the nature, scope and duration of the infringement;
• the maximum level of penalty to be imposed; and
• the implications of settling, including the minimum requirements of
settlement listed in paragraphs 14.7 and 14.8 above and that (except in
the circumstances set out in paragraph 14.26) an infringement decision
will be issued which may be relied on by third parties to bring follow-on
damages actions.
Settlement process
14.10 Settlement discussions can be initiated either before or after the Statement
of Objections is issued. Businesses may wish to approach the CMA during
an investigation to discuss the possibility of exploring settlement by
contacting the case team. The CMA will not make any assumptions about a
business’ liability from the fact that it is interested in engaging in or engages
in settlement discussions.
14.11 Before the CMA case team can commence settlement discussions, the SRO
will be required to obtain a mandate from the CMA’s Case and Policy
Committee to engage in settlement discussions. If settlement may be
appropriate in a specific case, all businesses involved in an investigation
(except, normally, any immunity applicant168) will be invited to explore the
possibility of settlement.
14.12 Settlement discussions will be subject to a set timetable. However, the
timetable will be appropriate to the circumstances of the case (for example to
167 For the purposes of settlement discussions initiated before a Statement of Objections is issued, a Summary
Statement of Facts sets out the key evidence and facts upon which the CMA relies to support its provisional
view that there has been an infringement of competition law. The Summary Statement of Facts together with
the key documents relied upon in the Summary Statement of Facts are presented to a business interested in
settling, to enable it to consider its position regarding a possible settlement.
168 As for the parties who settle, an immunity applicant involved in an investigation which is settled will be asked
to confirm as part of the leniency process that they accept that there will be no involvement of a Case
Decision Group.
72
take account of the number of businesses entering into settlement
discussions) rather than fixed at a set period. The appropriate procedure will
also be partly determined by the stage in the administrative process at which
settlement discussions take place. Settlement discussions will generally be
overseen by the SRO.
14.13 In cases where one or more of the businesses does not wish to settle, the
CMA may settle with the remaining businesses. For non-settling businesses,
the CMA will revert to the usual administrative procedure.169
Summary Statement of Facts
14.14 If the settlement discussions take place pre-Statement of Objections, each
business that enters into settlement discussions will be presented with a
Summary Statement of Facts170 and will be provided with access to the key
documents on which the CMA is relying as well as a list of the documents on
the CMA’s file. Access to specific documents can be requested, although the
provision of such access will influence the CMA’s ongoing assessment of the
procedural efficiencies and resources savings that can be achieved from
settlement.171 The CMA will give the business the opportunity to provide
limited representations, including identifying manifest factual inaccuracies on
the Summary Statement of Facts as part of the settlement discussions. If the
settling business’ representations amount to a wholesale rejection of the
facts of the alleged infringement as set out in the Summary Statement of
Facts, the CMA will reassess whether the case remains suitable for
settlement. This will be determined by the CMA on a case-by-case basis.
Draft Penalty Calculation
14.15 Each business considering settlement will be presented with a draft penalty
calculation which is likely to contain some aspects which will be the same for
each business considering settlement, and some which will vary to reflect
the relevant business’ particular circumstances. The CMA will also give each
business the opportunity to make limited representations on the draft penalty
calculation within a specified time frame as part of settlement discussions,
provided that these are not inconsistent with its admission of liability.
169 Referred to as ‘hybrid’ cases. 170 Alternatively, a draft Statement of Objections may be presented. This will depend on a number of factors,
such as, the timing of the approach to settle and whether the issue of a draft Statement of Objections would
provide additional procedural efficiencies and resource savings. Further references to Summary Statement of
Facts should be read to include such a draft Statement of Objections, where issued for settlement purposes. 171 These may be subject to confidentiality redactions where appropriate.
73
14.16 The CMA will not enter into negotiation or plea-bargaining during settlement
discussions, for example by accepting an admission in relation to a lesser
infringement in return for dropping a more serious infringement. Nor will the
CMA be prepared to negotiate variations to the minimum standard
requirements of the settlement procedure which will apply to all settling
businesses in that investigation.
Approval of settlement
14.17 The SRO must receive approval from the Case and Policy Committee to
settle.172
14.18 While settlement discussions will be conducted orally, the business’
acceptance of the settlement requirements, including its admission, must be
confirmed in writing (with its company letterhead). However, the CMA may
consider a reasoned request from the settling business to provide the
confirmation that it accepts the settlement requirements (including its
admission) orally. This will be recorded and transcribed.
14.19 If a business is settling pre-Statement of Objections, its admission will be
made by reference to the infringement(s) as set out in the Summary
Statement of Facts (incorporating any amendments necessitated by the
representations referred to in paragraph 14.14). The business will also be
given the opportunity to indicate in a concise memorandum any manifest
factual inaccuracies in the Statement of Objections once it is issued to the
business.173
14.20 Where a business is settling post-Statement of Objections the admission will
be made by reference to the infringement as set out in the Statement of
Objections and the business will be given the opportunity to indicate any
manifest factual inaccuracies in the Statement of Objections as part of its
admission.
14.21 The letter containing the confirmation from the party that it has accepted the
requirements of the settlement procedure and its admission to the
infringement will be placed on the CMA’s file.
14.22 Notes of the discussions will also be put on the CMA’s file but will not be
disclosed to other businesses involved in the investigation174 or, if the
172 Rule 9 of the CA98 Rules.
173 Where a business has received a draft Statement of Objections the CMA will normally not provide a further
opportunity to indicate any manifest factual inaccuracies. 174 See the disclosure provisions in Part 9 of the EA02.
74
discussions break down and no settlement is reached, the Case Decision
Group.175 Parties must not disclose the content of settlement discussions,
the fact that discussions have taken place, or any documents they have had
access to during the settlement procedure to any third parties (including any
other parties engaging in settlement discussions) without the prior written
authorisation of the CMA.
14.23 If, during settlement discussions, a business provides the CMA with new
documentary evidence or information relevant to the infringement, those new
documents or information will be placed on the file and may be disclosed to
other parties to the investigation in the usual way. The CMA may also take
further investigatory steps in relation to any such new documents or
information provided to it. For example, the CMA may issue formal
information requests or interview individuals in relation to the new
documents or information where it is appropriate to do so. The CMA will
make this clear to businesses when commencing settlement discussions.
14.24 If settlement discussions are not successful, the case will revert to the usual
administrative procedure. Any decision to issue an infringement decision and
any resulting penalty will be for a Case Decision Group. This means that any
penalty imposed may be different from any penalty calculation provided
during settlement discussions. Subject to paragraph 14.26 below, the case
will then proceed to either an infringement decision (if the case has already
passed Statement of Objections stage) or to a Statement of Objections
followed by an infringement decision (if the Statement of Objections has not
yet been issued).
Issue of an infringement decision
14.25 If settlement discussions are successful the SRO will generally issue an
infringement decision and will consult the Case and Policy Committee on
his/her proposed decision.176
14.26 An infringement decision will be issued in every settlement case unless the
CMA decides not to make an infringement finding against the settling
business, for example where new exculpatory evidence comes to light after
settlement but before the CMA has adopted an infringement decision.
175 If settlement discussions take place post-Statement of Objections, the Case Decision Group will be informed
that one or more businesses are exploring the possibility of settlement. This is inevitable because settlement
discussions will pause the case timetable. There may also be exceptional cases where the CMA considers it
appropriate for the Case Decision Group to oversee the settlement discussions and remain decision makers
on the case, in which case they would already be aware of the settlement discussions. 176 Rule 9 of the CA98 Rules.
75
Equally, the decision (and where relevant any Statement of Objections) will
substantially reflect the admission made by the settling business unless the
CMA considers it necessary to include amendments or issue a
Supplementary Statement of Objections, for example where new evidence
comes to light (see further paragraph 14.32). The decision will also include
findings of fact and law, the amount, and an explanation of, the penalty
imposed on the settling business as well as a description of the key
requirements of the settlement procedure. The decision may include findings
of effect if appropriate to the case.
Settlement discount
14.27 As part of the minimum requirements for settlement, a business must accept
that it will pay a maximum penalty. This is the maximum amount of penalty
that the settling business will pay if the CMA issues an infringement
decision.177
14.28 In the infringement decision, the CMA will set out the total penalty (£X) less
the specified settlement discount of (Y%), provided the settling business
follows any continuing requirements of settlement, which results in the
reduced penalty after settlement of (£Z) (the maximum penalty).
14.29 The settlement discount set out in the infringement decision will no longer
apply if a settling business appeals the infringement decision to the
Competition Appeal Tribunal. The Competition Appeal Tribunal has full
jurisdiction to review the appropriate level of penalty.
14.30 Settlement discounts will be capped at a level of 20%. The actual discount
awarded will take account of the resource savings achieved in settling that
particular case at that particular stage in the investigation. The discount
available for settlement pre-Statement of Objections will be up to 20% and
for settlement post-Statement of Objections will be up to 10%.
Withdrawal from the settlement procedure following settlement
14.31 Following the completion of successful settlement discussions the CMA will
retain the right to withdraw from the settlement procedure if the settling
business does not follow the requirements for settlement. Prior to
withdrawing, the CMA will notify the settling business that it considers that it
177 The maximum penalty figure may include a reduction for cooperation that has been provided prior to
settlement as a mitigating factor under step 3 of the penalty calculation (see CMA’s Guidance as to the
appropriate amount of a penalty (CMA73).
76
is not following the requirements of settlement and will give the business the
opportunity to respond.
14.32 If the CMA does not intend to substantially reflect a settling business’
admission in either the Statement of Objections or infringement decision (for
example where new evidence comes to light, as referred to in paragraph
14.26), the settling business will be given the opportunity to withdraw from
the settlement procedure and the case will revert to the usual administrative
procedure. In these circumstances, the settling business’ admission will not
be disclosed to other businesses involved in the investigation or to the Case
Decision Group, where this has not already occurred (for example, to other
businesses as part of access to file, see paragraph 14.19). Nor will that
admission be used in evidence against any of the parties to the investigation.
Immunity from Competition Disqualification Applications
14.33 The CMA has the discretion to decide that it will not pursue a competition
disqualification order or undertakings against the directors of the settling
business.178 However, this will not be a standard part of the settlement
procedure.
External communications during/post settlement
14.34 The CMA’s standard practice is not to make a public announcement that
settlement discussions are taking place, or, where discussions break down,
that they have broken down. As set out in paragraph 14.22 above, parties
must not disclose the content of settlement discussions or the fact that those
discussions have taken place to any third parties (including any other parties
engaging in settlement discussions) without the prior written authorisation of
the CMA.
14.35 In a case involving more than one business, the CMA is likely to inform other
businesses involved in the investigation that one or more businesses are
exploring the possibility of settlement. This is a necessary part of the process
since the CMA is committed to ensuring transparency of case timetables,
and entering into discussions on possible settlement will typically pause the
178 Under the Company Directors Disqualification Act 1986 as amended by the EA02, the CMA may apply to the
court for an order disqualifying a director from, amongst other things, being involved in the management of a
company (a Competition Disqualification Order). The court must award a Competition Disqualification Order if
it is satisfied that there has been a breach of UK or EU competition law (involving a company of which the
individual was a director), and the director's conduct in connection with that breach makes him or her unfit to
be concerned in the management of a company. See further Director disqualification in competition cases
(OFT510) and Company directors and competition law (OFT1340).
77
case timetable whilst such discussions take place. At settlement discussion
stage, the CMA will not name the business or businesses that have decided
to explore the possibility of settlement, although in a case involving a small
number of businesses, the CMA recognises that it may be possible for the
business or businesses to infer which business is considering the possibility
of settlement. The CMA will make it clear to other businesses involved in the
investigation that the relevant business or businesses are only exploring the
possibility of settlement at this stage.
14.36 The CMA may announce that a business has settled with a press release, in
which case the CMA’s webpages will be updated. Where possible the CMA
will give the settling business or businesses at least one hour’s advance
notice of the press release’s contents before it is published.179
179 Further details of the way in which the CMA gives notice of announcements is available in the CMA’s
Guideline Transparency and Disclosure: Statement of the CMA’s policy and approach (CMA6).
78
15 Complaints about the CMA’s investigation handling, right of
appeal and reviewing the CMA’s processes
Procedural complaints process for investigations under the CA98180
15.1 Parties to an investigation under the CA98 have recourse to a procedural
complaints process in the event that they are unhappy with certain aspects
of the investigation procedure after a formal investigation under section 25 of
the CA98 has been opened.181
15.2 The CMA has also published a guideline Transparency and Disclosure:
Statement of the CMA’s policy and approach (CMA6) setting out the steps it
takes to ensure the CMA’s work is open and accessible. Individuals,
businesses and their advisers are entitled to be treated with courtesy,
respect and in a non-discriminatory manner when dealing with the CMA. If a
party’s dispute falls outside the scope of the CMA’s procedural complaints
process for CA98 investigations, this guideline sets out the options available
to pursue the complaint.
15.3 Once a formal investigation has been opened, any concerns or complaints
about the CMA’s procedures or how investigations are handled should be
made in writing to the SRO in the first instance. If a party wishes to complain
to the SRO, it should set out details of its complaint and provide copies of
any relevant supporting documents or correspondence.
15.4 If, during the course of an investigation under the CA98, a party is unable to
resolve the dispute with the SRO, procedural complaints that relate to the
following issues may be referred to the Procedural Officer:
• deadlines for parties to respond to information requests, submit non-
confidential versions of documents or submit written representations on
the Statement of Objections or Supplementary Statement of Objections;
• requests for confidentiality redactions of information in documents on the
CMA's case file, in the Statement of Objections or in the final decision;
180 The Procedural Officer can also deal with certain disputes in relation to merger investigations and market
studies and investigations (see further Chapter 5 of the CMA guideline Transparency and Disclosure:
Statement of the CMA’s policy and approach (CMA6)).
181 Rule 8 of the CA98 Rules.
79
• requests for disclosure or non-disclosure of certain documents on the
CMA's case file;
• issues relating to oral hearings, including, for example, with regard to
issues such as the date of the hearing; and
• other significant procedural issues that may arise during the course of an
investigation.
15.5 The Procedural Officer is independent of the investigation, the case team
and the Case Decision Group.
15.6 The Procedural Officer does not have jurisdiction to review decisions on the
scope of requests for information or other decisions relating to the substance
of a case.182
Process for referring a complaint to the Procedural Officer183
15.7 If a party wishes to refer a dispute to the Procedural Officer for review, that
party will need to make an application within five working days of being
notified of the SRO's decision on the issue in question. A party must provide
a short written summary of the issue in question and provide copies of
relevant correspondence with the case team and SRO.
15.8 On receipt of a complaint reference, the Procedural Officer will provide an
opportunity for the case team and the party to present their arguments to the
Procedural Officer orally on the telephone or at a meeting, before issuing a
short, reasoned decision either confirming the SRO's decision, or reaching a
different decision in whole or in part. The Procedural Officer's decision will be
binding on the case team.
15.9 The Procedural Officer will endeavour to deal with the complaint as quickly
as possible, with an indicative administrative target of taking decisions in
most cases within ten working days from receipt of the application. The
Procedural Officer will reach a decision within 20 working days from receipt
182 Section 26 of the CA98 provides the CMA with the power to require documents or information.
183 See further Rule 8 of the CA98 Rules.
80
of the application, extendable by no more than 20 working days if there are
special reasons184 to do so.185
15.10 The Procedural Officer will carefully assess how long any extension will be
and will endeavour to make only one extension where it is required. The
party’s cooperation will assist the Procedural Officer to make a robust and
timely decision, in particular by attending meetings and/or providing
information on short notice.
15.11 The CMA will publish the Procedural Officer's decision, or a summary of that
decision, generally at the time of the decision or at the end of the case,
subject to confidentiality redactions as appropriate.
Right of appeal to the Competition Appeal Tribunal or court
15.12 The role of the Procedural Officer does not prejudice the party's rights in
respect of judicial review and/or any appeal before the Competition Appeal
Tribunal.
15.13 Addressees of the CMA’s appealable decisions and third parties with a
sufficient interest in appealable decisions have a right to appeal them to the
Competition Appeal Tribunal. Appealable decisions include decisions as to
whether there has been a competition law infringement, interim measures
decisions and decisions on the imposition of, or the amount of, a penalty.186
15.14 Where the law does not provide for an appeal, an application for judicial
review may be brought in certain circumstances.187 Parties should seek
independent legal advice on their rights in this regard.
184 For example, where complaints require the Procedural Officer to deal with large volumes of data or materials,
or where the Procedural Officer receives a number of complaints within a short period of time and is unable to
deal with one or more complaints within the original 20 working day period.
185 See Rule 8 of the CA98 Rules.
186 Section 46 of the CA98 and section 47 of the CA98 as substituted by section 17 of the EA02.
187 A judicial review application may be brought before the Administrative Court of the Queen's Bench Division
under Part 54 of the Civil Procedure Rules.
81
16 Application and enforcement of Articles 101 and 102
16.1 The CMA can use its powers of investigation and enforcement under CA98
for Article 101 and Article 102 investigations. The CMA may also investigate
at the request of the European Commission or National Competition
Authorities of EU Member States (NCAs).
Powers to assist with European Commission investigations
16.2 Part 2 of CA98 and the EC Regulation 1/2003 (the Modernisation
Regulation)188 together provide the CMA189 with powers to assist the
European Commission to undertake investigations relating to Article 101 and
Article 102.
16.3 The CMA may actively participate in European Commission investigations
relating to Article 101 or Article 102 in three ways:
• the European Commission may request that the CMA carry out an
inspection of business premises on its behalf;
• the CMA may be required to assist the European Commission when it
carries out an inspection of business premises in the United Kingdom;
and
• the CMA may be required to assist the European Commission when it
carries out an inspection of non-business premises in the United
Kingdom.
Inspections on behalf of the European Commission
16.4 When the CMA is carrying out an inspection of business premises on behalf
of the European Commission, the CMA officers will have been given an
authorisation190 under CA98 which has the effect of providing them with the
powers of an official authorised by the European Commission.191
188 Council Regulation (EC) No 1/2003 of 16 December 2002, OJ L 1, 4.1.2003, p. 1-25. 189 These powers are not available to the Regulators. They may, however, participate in inspections carried out
by the CMA on behalf of the European Commission if the industry being investigated falls within their area of
expertise. 190 The authorisation will identify the officers, the subject matter and purpose of the investigation and draw
attention to the penalties which an undertaking may incur in connection with the inspection under the relevant
provision of Community law. Article 23(1)(c) (fines) and Article 24(1)(e) (periodic penalty payments) of the
Modernisation Regulation. 191 Section 62B(1) of CA98.
82
16.5 This means that the CMA officers will possess further powers that are not
available when the CMA investigates suspected infringements of Article 101
or Article 102 on itself. Primarily, in addition to asking employees for
explanations of documents, CMA officers can ask for an explanation of the
facts or documents relating to the subject matter and purpose of the
inspection.192
16.6 The CMA may obtain a warrant where an inspection of business premises
which it is carrying out on behalf of the European Commission is being, or is
likely to be, obstructed.193 The warrant obtained must indicate the subject
matter and purpose of the investigation and the nature of the offence for
obstruction.194
Assisting with European Commission inspections
16.7 When assisting the European Commission with an inspection of business
premises, CMA officers have the same powers as an official authorised by
the European Commission.195
16.8 When assisting the European Commission with an inspection of non-
business premises, the CMA must obtain a warrant before any inspection
can be carried out. The CMA officers, in addition to being able to do anything
which the warrant authorises them to do, will have the same powers as an
official authorised by the European Commission.196
Privileged information
16.9 Where an inspection is being conducted by the CMA on behalf of the
European Commission (under sections 62B and/or 63 of CA98), the United
Kingdom rules on legal professional privilege will apply.197
16.10 When assisting the European Commission with an inspection, the range of
documents that can benefit from legal professional privilege is in some
respects narrower than when the CMA is investigating suspected
192 Article 20(2)(e) of the Modernisation Regulation. 193 Section 63 of the CA98. 194 A person will be guilty of an offence if they intentionally obstruct any person in the exercise of their powers
under a warrant issued in relation to a European Commission investigation relating to Article 101 or 102. The
sanction is a fine of up to the statutory maximum on summary conviction or an unlimited fine and/or a
maximum of two years’ imprisonment on conviction on indictment. 195 Article 20(5) of the Modernisation Regulation. 196 Article 21(4) of the Modernisation Regulation. 197 Section 65A of CA98.
83
infringements of Article 101 or Article 102 on its own behalf or on behalf of
another NCA.
16.11 The European Court of Justice has recognised that correspondence
between a client and an external legal adviser, entitled to practice in one of
the Member States, is subject to legal professional privilege where: (i) the
correspondence follows the initiation of proceedings by the European
Commission and concerns the defence of the client; or (ii) the
correspondence existed before the initiation of proceedings but is closely
linked with the subject matter of the proceedings.
16.12 Correspondence between a client and an external legal adviser who is not
entitled to practise in one of the Member States or between a client and an
in-house legal adviser (unless the in-house legal adviser is simply reporting
the legal advice of an external legal adviser) is not recognised by the
European Courts as being protected by legal professional privilege under
European Union law.198
16.13 Where an inspection is being conducted to assist the European Commission,
legal professional privilege can be claimed only for documents that fall within
the category of correspondence that the European Court of Justice has
recognised as being subject to legal professional privilege. In order to claim
legal professional privilege for certain documents during an inspection the
occupier must make a case to the European Commission demonstrating why
the documents are covered by legal professional privilege.
Power to assist National Competition Authorities of EU Member States
16.14 Under Part 2A of CA98, the CMA may carry out an inspection or other fact-
finding measure199 in the United Kingdom on behalf of an NCA in order to
assist it in establishing whether there has been an infringement of Article 101
or 102.200
16.15 Part 2A provides the CMA with similar powers of investigation to those it
uses to investigate suspected infringements of Article 101 and 102 under
Part I of the Act. This means that, where there are reasonable grounds to
suspect an infringement, the CMA will have the power to:
198 Case 155/79 AM & S Europe v Commission [1982] ECR 1575, 1982 [CMLR] 264. 199 These powers are not available to the Regulators. They may, however, participate in inspections carried out
by the CMA on behalf of other NCAs if the industry being investigated falls within their area of expertise. 200 Section 65D of CA98.
84
• require the production of specified documents and information;201
• enter business premises without a warrant;202 and
• enter and search business or domestic premises with a warrant.203
16.16 Although NCAs of other Member States do not have any formal powers of
investigation within the United Kingdom, NCAs officers may be authorised to
accompany, and participate under the supervision of, authorised CMA
officers on an inspection where the CMA uses its power to enter premises
under a warrant.204
16.17 These powers of investigation are subject to the same restrictions
concerning legal professional privilege and self-incrimination in relation to
investigations under Part I of the CA98.
201 Section 65E of CA98. 202 Section 65F of CA98. 203 Sections 65G and 65H of CA98. 204 Section 65G(4) and 65H(4) of CA98.
85
ANNEXE(S)
86
A. TEMPLATE DECLARATION OF TRUTH
This Declaration should be included with the interim measures application and be
signed by an individual or individuals with authority to bind the person applying for
interim measures (the Applicant):
I declare that, to the best of my knowledge and belief, the information and evidence
provided to the CMA in support of the application for interim measures made by
[name of the Applicant] is true, correct, and complete in all material respects.
I understand that it is a criminal offence under section 44 of the Competition Act
1998 (CA98) for a person recklessly or knowingly to supply to the CMA information
which is false or misleading in any material particular. This includes supplying such
information to another person knowing that the information is to be used for the
purpose of supplying information to the CMA.
Signed:
Name: (block letters)
Position: (block letters)
Date: